TMI Blog2024 (4) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... an authority or a person. Rules of 2000 do not suggest that the Adjudicating Authority shall only be the Special Director or the Principal Special Director or the Additional Director. It only says the Adjudicating Authority and, as such, by no stretch of imagination it can be inferred that the Adjudicating Authority is a persona designata . Adjudicating Authorities exercise their jurisdictions and power according to the pecuniary limits as enumerated in the notification appointing them as Adjudicating Authorities. The notification issued by the Central Government empowers the Adjudicating Authority to decide the case within his/her pecuniary limits. Albeit the notice is issued by the Special Director, who at the relevant and material time was the Adjudicating Authority, subsequently, because of the fresh notification issued on 27.9.2018, the Adjudicating Authority notified by the Central Government is the Additional Director and the Additional Director is empowered to conduct the adjudication proceedings. The inquiry and the adjudication proceedings has to proceed on the basis of the evidence produced. The evidence produced by the person would be considered by the Adjudicating Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations 8, 9(1) and 13 of the Foreign Exchange Management (Export of Goods and Services) Regulations, 2000 for non-repatriation of the export proceeds. 2.2. Subsequent to the issuance of the show cause notice, the Assistant Director (SRO), Directorate of Enforcement, Southern Regional Office, Chennai, vide letter dated 6.2.2020, directed the appellants to appear on 19.2.2020 before the Additional Director for adjudication proceedings. Thereafter, the appellants sought further time and copies of the documents relied upon by the respondents. There was exchange of communication between the parties and, ultimately, by the notice dated 9.9.2020 issued by the Assistant Director (SRO), Directorate of Enforcement, Southern Regional Office, Chennai, the appellants were required to be present for hearing on 23.9.2020 before the Additional Director, Directorate of Enforcement. 2.3. It is the case of the appellants that the show cause notice having been issued by the Special Director, Directorate of Enforcement, he is the Adjudicating Authority and the further proceedings are required to be conducted by him alone and not by the Additional Director. Therefore, the appellants filed writ petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicate the notice. The third respondent did not issue any show cause notice to the appellants. That being so, the authority, to wit, the second respondent, who issued the show cause notice to the appellants, is the Adjudicating Authority who can conduct inquiry under the Rules of 2000. 3.4. Learned Senior Counsel for the appellants further submits that, as contemplated under Rule 4(3) of the Rules of 2000, the Adjudicating Authority can only be the authority who issues the show cause notice under Rule 4(1) of the Rules of 2000. The second respondent, who is the Special Director and had issued the show cause notice, is the Adjudicating Authority. Learned Senior Counsel relies upon the judgment of the Apex Court in the case of Canon India Private Limited v. Commissioner of Customs, (2021) 18 SCC 563, so also the judgments in the cases of (i) Tata Chemicals Limited v. Commissioner of Customs (Preventive), Jamnagar, (2015) 11 SCC 628 ; and (ii) Shashank Vyankatesh Manohar v. Union of India and another, 2014 (1) Mh.L.J. 838. 3.5. Learned Senior Counsel also submits that when a statute requires a particular thing to be done in a particular manner, it must be done in that manner or not at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive crores (2) Principal Special Director of Enforcement Cases involving amount exceeding rupees twenty five crores (3) Special Director of Enforcement Cases involving amount exceeding rupees twenty five crores. (4) Additional Director of Enforcement Cases involving amount upto rupees twenty five crores but not less than ten crores (5) Joint Director of Enforcement Cases involving amount upto rupees ten crores but not less than five crores. (6) Deputy Director of Enforcement Cases involving amount upto rupees five crores and not less than two crores (7) Assistant Director of Enforcement Cases involved of amount not exceeding rupees two crores 7. For cases involving amount up to Rs.25 crore, the Additional Director of Enforcement is the Adjudicating Authority. Prior to the said notification, for cases involving the amount up to Rs.25 crore, the Adjudicating Authority was the Special Director of Enforcement. 8. The Adjudicating Authority is defined under Section 2(a) of the Act of 1999. Adjudicating Authority means an officer authorised under sub-section (1) of Section 16. 9. Under sub-section (1) of Section 16 of the Act of 1999, the Central Government may, for the purpose of adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants to show cause why an inquiry should not be held against them. Under sub-rule (3) of Rule 4 of the Rules of 2000, after considering the cause, if any, shown by the person, the Adjudicating Authority is of the opinion that an inquiry should be held, he shall issue a notice fixing a date for the appearance of that person either personally or through his legal practitioner or a chartered accountant duly authorised by him. Under sub-rule (4) of Rule 4 of the Rules of 2000, the Adjudicating Authority shall explain to the person the contravention alleged to have been committed by such person, indicating the provisions of the Act or Rules or Regulations. Under sub-rule (5) of Rule 4 of the Rules of 2000, the adjudicating authority gives a further opportunity to the person to produce such documents or evidence as he may consider relevant to the inquiry. Under sub-rule (8) of Rule 4 of the Rules of 2000, if, upon consideration of the evidence produced before the Adjudicating Authority, the Adjudicating Authority is satisfied that the person has committed the contravention, he may, by order in writing, impose such penalty as he thinks fit, in accordance with the provisions of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to proceed on the basis of the evidence produced. The evidence produced by the person would be considered by the Adjudicating Authority for forming an opinion to proceed further with the show cause notice. 16. In view of the aforesaid, the contention of the appellants that the person who issues the show cause notice under Rule 4(1) of the Rules of 2000 would alone be the Adjudicating Authority till the culmination of the proceedings cannot be comprehended and needs to be rejected. 17. Learned Senior Counsel for the appellants relied upon the phrase in the notification which reads that ... except as respects things done or omitted to be done before such supersession... . According to learned Senior Counsel, the same is a saving clause. Referring to the said phraseology, it is submitted that the show cause notice having already been issued to the appellants, the appellants are covered under the said saving clause and, as such, the appellants' case cannot be transferred from the second respondent to the third respondent. 18. In our opinion, the said arguments does not hold water. The phrase except as respects things done or omitted to be done before such supersession... would mea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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