TMI Blog2018 (9) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... ilt of accused party. The statements of Shri Vinod Kumar are contradictory and self-defeating. Shri Vinod Kumar in his statement dated 09.04.2002 before the Respondent states that he does not have any role to play in the affairs of Appellant No.1, whereas before the Company Law Board, at para 2 of the Judgement dated 18- 04-1999, he takes a completely contrary stand. The benefit of doubt goes in favour of the appellant. The adjudication Order is not sustainable for the lack of evidences. There is no clear and cogent evidence available on record to show that Shri Ashok Kumar has received any payment pertaining to the transaction in question. - FPA-FE-216/MUM/2003 - - - Dated:- 17-8-2018 - Justice Manmohan Singh, Chairman For the Appellant : Shri Gaurav Duggal Advocate Shri Saswat Pattnaik, Advocate For the Respondent : Ms. Agam Kaur,Legal Consultant JUDGEMENT FPA-FE-216/MUM/2003 1. The present appeal has been filed against the Order dated 14.05.2003 being Order No. ADJ/70/DD/AKL/B/2003 in Memorandum No. T-4/26- B/DD/RKP/2002 dated 21.05.2002 passed by the Dy. Director of Enforcement, Enforcement Directorate, Mumbai whereby the Dy. Director held Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings as contemplated in Section 51 of the FERA, 1973 should not be held against them. Pursuant to the said direction of the Dy. Director, Enforcement Directorate, Mumbai, the Appellant filed their response. 7. Late Shri Ashok Kumar vide his reply dated 24.03.2003, clarified the position that the company did not enter into contract worth US $ 1,50,000 nor rendered the services in respect of documentation work. 8. By Order dated 14.05.2003, the Dy. Director inter-alia, held Appellant No. 1 company guilty under Section 16(1) of the Foreign Exchange Regulation Act, 1973 and thereby imposed a penalty of ₹ 25,00,000 (Rupees twenty five lakh only) on the Appellant No. 1, company and further held Appellant No. 2, Late Shri Ashok Kumar guilty of charges under Section 16(1), with 68(1) and Section 8(1) of Foreign Exchange Regulation Act, 1973 and thereby imposed a penalty of ₹ 15,00,000/- (Rupees fifteen lakh only) and ₹ 10,00,000/- (Rupees ten lakh only), respectively. 9. The Tribunal vide its order dated 01.10.2009 framed two points of difference: i) Whether M/s. Sigmalon Equipment Ltd has been rightly held guilty of contravention of Section 16(1) of FER Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judication proceedings, the request for cross examination of Shri Vinod Kumar was also declined by the Respondent. 17. With regard to the allegation that during 1990-91, the Appellant Company had entered into a contract with M/s EEE for engineering services and documentation work for an amount of US $ 1,50,000 and had failed to receive the amount due from M/s EEE. Late Shri Ashok Kumar had in his reply dated 24.03.2003 stated that the company did not enter into contract worth US $ 1,50,000 or thereabouts. 18. The Dy. Director, Enforcement Directorate has not supported the charges with any corroborative independent evidence and has solely relied upon the statement/ complaint made by Shri Vinod Kumar (who is the brother of Late Ashok Kumar) and had having the litigation against his brother and list the matter in court whereby it was held that no documents in this regard were produced/proved. It is also a matter of fact that show cause notice was issued on the complaint of Shri Vinod Kumar and after the findings of the court in favour of Late Shri Ashok Kumar. 19. The Dy. Director failed to apply its mind to the submissions made by Late Shri Ashok Kumar and by Shri Anshul Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l status of the Appellant Company is that it had already closed down since 1991. The Appellant Company had also filed its IT Returns for the assessment years 2000-01 and 2006-07 by its Auditors together with profit and loss accounts and auditors report and also balance sheet and annual report ending year 31.03.2001, which certifies that the Appellant Company is in loss supported by its Auditors Report. 24. Shri Ashok Kumar expired in Pune on 10-01-2008 in Jahangir Hospital, Pune. A copy of the Death Certificate issued by the Municipal Corporation, Pune has already been submitted. 25. The other question is whether the Appellant Company was under an obligation to explain the admission of Ashok Kumar, its Managing Director, of having received DM 40,000 from M/s EEE in the final settlement of compensation for services rendered by its employee, A.N. Saqrode to M/s EEE during 01-04-1990 to 10-12-1990, which was made without disclosing the actual amount of compensation receivable by the company from the German Company and the actual terms and conditions on which A.N. Sarode was sent to the German Company for a period of said more than 6 months which the company has not been able to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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