9911796707
TMI Blog2018 (4) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... s seeking a writ of mandamus or any other appropriate writ, order or direction, directing respondent no. 4 to produce before this court a copy of the purported information from the Reserve Bank of India (RBI) to the effect that the petitioner has failed to utilise the foreign exchange for the purpose for which it was obtained and to give particulars and details of investigation and inquiry conducted by the said respondent, upon the information from the RBI. 4. There are various other prayers in the writ petition, but what is essentially pressed before us is the prayer to issue a writ of certiorari so as to quash and set aside the show cause notice and the adjudication orders. 5. To such a writ petition filed in this court on 19th June, 2014 and pending since then, a preliminary objection has been raised by Mr. Rana learned senior counsel appearing for the respondents. He would submit that the order under challenge is passed on a show cause notice. This order is capable of being challenged in an appeal before the appellate forum. That appellate forum will provide enough opportunity to the petitioner to make good its case and on all counts, as raised in the instant petition. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismiss it. 7. Mr. Nedumpara appearing for the petitioner would submit that we must firstly appreciate the nature of the jurisdiction vesting in this court under Article 226 of the Constitution of India, particularly to issue a writ of certiorari. That writ can be claimed as a matter of right. Although there is an alternate and equally efficacious remedy of bringing a suit to challenge the order of adjudication, which is without jurisdiction, null and void, to bring a suit now to challenge that order would mean the petitioner will have to overcome the bar of limitation. In these circumstances, all the more, we should not relegate the petitioner to any alternate remedy, much less of an appeal within the statutory framework. It is, therefore, Mr. Nedumpara's contention that we should entertain the petition. 8. Mr. Nedumpara, while elaborating this contention on jurisdiction would invite our attention to section 8(3) and (4) of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as "the FERA"). Mr. Nedumpara submits that the petitioner has not challenged the constitutionality of this provision. Instead, the petitioner is praying that this provision be interpreted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Nedumpara has handed over to us copies of several judgments of the Hon'ble Supreme Court and he essentially relies upon the principles in one of the earliest cases. He would submit that in all these earlier cases, the principle that has been enunciated by the Hon'ble Supreme Court and to be followed later is not only that the writ of certiorari would reach to correct the obvious error occurring on the face of the record. It can be claimed so as to set aside an order, which is ex-facie without jurisdiction. There is no rule with regard to certiorari as there is mandamus that it will lie when there is no other equally efficacious remedy. Mr. Nedumpara would, therefore, submit that we must take note of all the submissions and essentially on jurisdiction and grant the prayer in the petition. 9. Mr. Rana, on this aspect of the matter, would submit that FEMA is a complete code. There are two appeals, which are provided by that law. One appeal would lie to the appellate tribunal set up in the scheme of the statute. The second appeal would lie to this court. That is how the objection to the maintainability has been raised. Secondly, the FEMA repeals FERA. However, the effect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sider whether to entertain the petition or to grant any relief therein. We will have to notice a few facts before we can pronounce upon the submissions of the learned counsel, noted above. 12. The petitioner carries on a business and during the course thereof, it is stated to have imported goods in India. In consideration thereof, they are supposed to have remitted foreign exchange. The notice alleges that the petitioner failed to submit the respective bills of entry/postal/courier wrapper evidencing import of goods into India, for which, the foreign exchange remittances were effected and thereby failed to submit requisite documentary evidence in respect of the import to their authorised dealer. This non-submission of documentary evidence of import of goods into India is contrary to the terms of paragraph 7A.20(i) of the Exchange Control Manual, 1993. The notice refers to section 8(3) and section 8(4) of the FERA and then alleges that the petitioner-noticee has contravened the provisions of section 8(3) read with section 8(4) of this Act and rendered itself liable to be proceeded against under section 50 of the said Act read with sub-sections (3) and (4) of section 49 of the FEMA. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is how the another call notice was served on the petitioner on 5th October, 2004 requiring them to appear for personal hearing on 12th October, 2004. 14. It is pertinent to note that in response to this call notice, Mr. H. R. Shetty and Company, Advocates, Solicitors and Notaries, on behalf of the petitioner, addressed a letter dated 7th October, 2004 stating that their client's, namely, the petitioner were not able to locate the documents pertaining to the subject matter of the show cause notice and requested to furnish the documents and also requested for adjournment of hearing. The available information was given to them on 8th October, 2004 and once again, a call notice was issued on 11th October, 2004 requiring them to appear for personal hearing on 18th October, 2004. In response to this notice, the petitioner addressed a letter dated 18th October, 2004 stating that their previous registered office situated at Poonam Chambers collapsed in September, 1997, due to which, some of their vital records/documents, inlcuding those pertaining to the information to be submitted in the instant case had been misplaced and not traceable and that an extension of one month time be gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter preferably within six months from the date of first appearance of the appellants who are directed to appear before Adjudicating Officer on 24th December, 2007." 17. Thus, the order on the show cause notice was set aside and the matter was sent back to the adjudicating authority. Before the adjudicating authority, a personal hearing was held on 18th March, 2014. At that stage, the petitioner engaged Mr. Nedumpara, who remained present. He sought to argue that the tribunal has no jurisdiction to conduct the inquiry or trial in furtherance of the show cause notice. He argued that once the issue of competence or jurisdiction of a court or a tribunal to embark upon an inquiry is raised, such court or tribunal shall decide the question of its own jurisdiction as a preliminary issue. Unless and until that is done, it has no competence to go into the merits of the case. It must record a finding that the challenge to the jurisdiction and competence is unfounded. Thus, the argument was that the jurisdiction was challenged on two grounds. Firstly, there is no complaint nor there is a complainant as mandated by sub-section 16(3) of FEMA. No notification, by which an officer was appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntually on 17th February, 2014, the petitioner appeared and requested for adjournment for filing reply. The next date was given on 24th February, 2014, during which, they submitted the written submissions dated 18th February, 2014 on the point of jurisdiction. At the same time, the order records that the petitioner submitted that it wants to file its reply with evidence to support the claim against the show cause notice and requested for more time. That is how time was granted and the matter was placed on 18th March, 2014. On 18th March, 2014, the above noted stand was taken by the petitioner. 22. It is in these circumstances that the adjudicating authority proceeds on the footing that the jurisdiction is derived by it from a notification dated 24th August, 2012, based on which, circular/order dated 14th September, 2012 has been issued by the Directorate of Enforcement. That is how the Deputy Director is empowered to adjudicate cases involving amount of value in excess of fifty lakhs, but not exceeding Rs. one crore. Accordingly, the show cause notices were taken up for adjudication and in the process, personal hearing opportunity was given to the petitioner. After this, the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is obligatory on the part of importer to produce the exchange control copy(s) of the bills of entry of the subject imports to their authorized dealer as proof of imports. No such documents were produced by them in respect of remittances in question. Thus it is evident that import against the remittance of Rs. 28,47, 215, Rs. 62,16,661/-, Rs. 33,39,600/- & Rs. 28,33,948/- has not taken place and thereby not utilizing the foreign exchange so acquired, is a contravention of the provisions of section 8(3) and (4) of FERA, 1973 read with section 49(3) and (4) of FEMA, 1999. Accordingly, I pass the following order: ORDER I therefore impose a penalty of Rs. 28,47,215/- (Rupees twenty eight lakh forty seven thousand two hundred and fifteen) in case of SCN-I, Rs. 62,16,661/- (Rupees sixty two lakh sixteen thousand six hundred and sixty one) in case of SCN-III, Rs. 33,39,600/- (Rupees thirty three lakh thirty nine thousand six hundred in case of SCN-IV and Rs. 28,33,948/- (Rupees twenty eight lakh thirty three thousand nine hundred and forty eight) in case of SCN-V in terms of the powers conferred on me under section 50 of FERA, 1973 read with section 49(3) and (4) of FEMA, 1999. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port. That is how they desired to establish a nexus or co-relation with the import and the remittances abroad. Thus, this was an opportunity sought to make good their case on merits. 24. Pertinently, despite all this and after many orders and decades from the import, Mr. Rana learned senior counsel appearing for the respondents in all fairness stated that even now if the petitioner is ready and willing to bring the necessary materials and prove the genuineness of the import transactions, the adjudicating body or authority will grant that opportunity and in this peculiar facts, but not treating this exercise as a precedent for future cases. When this suggestion was put to Mr.Nedumpara, he says that the imports are as old as 1996, there are no chances of the records being available after more than two decades, the building in which the petitioner was having its office earlier being pulled down or has collapsed. All the more, therefore, there is nothing with the petitioner to substantiate and prove their case on merits. 25. It is in these circumstances, we are of the opinion that though a writ of certiorari can be issued by this court despite the presence of alternate and equally ef ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
