TMI Blog1986 (12) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... 52, the Appellate Board appointed by the Government on receipt of appeal may, after making such enquiry as they deem fit, affirm or modify the order appealed against. As per section 54, an appeal which would lie before this court should only be on questions of law. It is seen from these provisions that the first proceedings is in the nature of departmental enquiry and in the second proceedings, the department is one of the parties and the dealer is another party. 2. The facts of the case are summarily as follows: The appellant is a dealer in goat hair. He has obtained necessary permission from the official authorities to send various consignments of that commodity to several places in the East European countries, namely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the parties at those ports were acting only as agents, collaborators or partners of the consignees. As there were nine consignments, nine show cause notices were served and there were nine adjudication proceedings before the Deputy Director of Enforcement, Madras. In nine separate orders all dated December 31, 1979, the Deputy Director of Enforcement found, on the basis of the documents seized and found in the possession of the appellant and which the appellant has been allowed to peruse, that the irresistible conclusion to be arrived at was that the commodities apparently sent to East European countries were effectively meant and sent to West European countries. Accordingly, he imposed penalties separately under sections 10(1)(b) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, we find in the order of the adjudicating authority that the dealer/appellant inspected all the documents. No doubt, the documents were not returned to him as applied for, since it was not possible for the Department to part with the documents and no application appears to have been made for copies of the documents. Again in the order of the Appellate Board, we find that the appellant has been given sufficient opportunity to peruse the document before the adjudicating authority had that even during appeal proceedings such an opportunity has been afforded to him. As far as the delay in the proceedings is concerned, no explanation was given by learned counsel for the respondent for the period of six years between the receipt of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hatsoever as to how the contravention under section 12(2)(b) was perpetrated. 8. In these proceedings, the case of the Department is that the appellant got permission for exporting certain commodities such as goat hair to East European countries, that he has received payment for exported goods in rupees and that actually the commodities landed in West European countries from which the appellant was entitled to receive hard currencies. As far as section 10(1)(b) is concerned, as pointed out earlier, there is a clear finding supported by evidence that the dealer has done a thing which had the effect of securing that the foreign exchange due ceased to be receivable by him. As far as contravention under section 12(2)(b) is concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he term prescribed is defined in the Act (section 2(1)) as meaning prescribed by rules made under the Act. As far as the present transaction is concerned, it is the admitted case of the Department that the goods were intended to be shipped to rupee currency areas and that the corresponding amount has been received. It has not been shown what really the contravention under section 12(2)(b) amounted to. The order of the adjudicating authority refers to the failure of repatriation of export proceeds in the prescribed manner as shown in Schedule A of the notification. That Schedule A is not available in the record, nor has learned counsel for the respondent been able to place it before us, in order to enable us to find out whether any manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visited with penalty, we find it extremely difficult to uphold the order of the Appellate Board where there is not even a single line showing how the contravention under section 12(2)(b) has occurred. If we see the order of the adjudicating authority, we do not find anything except a cursory sentence which we have already referred to above. In the absence of materials to show that a contravention under section 12(2)(b) actually happened, we are necessarily led to the conclusion of setting aside the order of the Appellate Board as far as the penalty for contravention under section 12(2)(b) is concerned. 12. Before parting with this case, we want to observe that the order of the adjudicating authority does not contain the list of do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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