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2018 (12) TMI 445

Gross violation of the principles of natural justice - Dispensation of the pre-deposit - Penalty imposed - whether principles of natural justice was followed or not? - Held that:- Innumerable opportunities have been given to the appellant for appearing/arguing his case and examining the witness but he failed to avail the same. He either did not appear or on the few occasions where he did appear before the adjudicating authority he took adjournment on some plea or the other. We agree with the learned counsel for the respondents that justice is qua both the parties and we do not find any violation by the adjudicating authority in this regard. - Therefore, do not see any reason to grant them the dispensation of the pre-deposit. They have n .....

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y be dispensed with. During the arguments, the learned counsel for the appellant referred to para 61, 62 & 63 of the order in original SDE/PKD/IV/08/2008 dated 25.02.2008 whereby he argued that although they were sent notices for personal hearing and cross-examining however they vide their letter dated 31.01.2008 had requested that the hearing and cross-examination be adjourned to 20th February, 2008. But the adjudicating authority did not give them any further chance thereafter and decided the case. Hence neither were they heard nor any opportunity to cross-examine the witnesses was provided to them thereby violating the principles of natural justice. He relied on the following judgments: a. Virendra Kumar Yadav vs. UOI & Ors., Del .....

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opportunities but they did not avail of it. On the letter dated 31.01.2008 as referred to by the counsel for the appellant during the hearing, they stated subsequent to that the adjudicating authority had given them three dates i.e. 06th, 07th & 08th February, 2008 on which dates they did not appear. They further stated that as per Rule 4(7) of FEMA. Foreign Exchange Management (Adjudication proceedings & Appeal) Rules, 2000, if any person fails, neglects/refuses to appear before the adjudicating authority, the adjudicating authority may proceed with the adjudication proceedings in the absence of such persons after according the reasons for doing so. They relied on the Supreme Court judgment in the case of Kanwar Natwar Singh vs. D .....

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& 12th December, 2007. On 30.11.2007, summons under Section 53 of FERA, 1973 was issued to Shri Janakiraman the then Chief Enforcement Officer, who participated in the investigations, for his appearance on 13th & 14th December, 2007. Both Shri Kaandasamy and K.V. Dhanapalan, Advocates were also informed about the proposed dates which was attended by Mr. Dhanapalan on behalf of the appellant. The counsel for the appellant Mr. Dhanapalan started examination of the Chief Enforcement Officer and at the request of the advocate the examination was adjourned to 17th & 18th January, 2008. At para 62 of the impugned order, it states on the next date of hearing on 17.01.2008 and 18.01.2008 Shri Janakiraman I.O. (from ED) of the case was .....

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ation by the adjudicating authority in this regard. 5. I therefore, do not see any reason to grant them the dispensation of the pre-deposit. They have not pleaded anything either on merits of the case or on hardship even when specifically asked by me. With regard to the judgments quoted by the counsel for the appellant on the principles of natural justice it goes without saying that these principles are the pillars of justice and there is no denying these judgements. However, the facts of the case has to be seen to come at a conclusion whether there is a denial of these principles or not. The discussions and findings in the previous paras show that the principles have been fully followed by the adjudicating authority. 6. However considering .....

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