9911796707
TMI Blog2024 (9) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... import of goods from abroad as per annexure A to SCN. It is alleged in the Show Cause Notice that the said company failed to submit Exchange Control Copy of Bill of Entry in confirmation of having imported the material for which the said amount was remitted. It appears that during the relevant period S/Sh. Sunder Lal, Hemant Luthra, Santosh Kumar Gupta, and Gursharan Singh Johar were in-charge of and responsible to the said company for the conduct of day-to-day business of the company. Chapter 7A, 20 (i) of the Exchange Control Manual, 1995 makes it obligatory on the part of the importer to submit Exchange Control Copy of Bill of Entry for Home Consumption/Postal/Courier wrapper to the authorized dealer within three months from the date of remittance (or within prescribed period as provided in paragraph 7.A.10) through whom related remittance was made as evidence that thegoods for which the payment was made have actually been imported into India.Section 8 (3) & Section 8 (4) of the Foreign Exchange Regulation Act, 1973 provides as under:- Section 8 (3) Where any foreign exchange is acquired by any person, other than an auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid Directors appeared to have contravened the provisions of Section 8 (3) & 8 (4) read with Section 68 of the Foreign Exchange Regulation Act, 1973 and read with Chapter 7A, 20 (I) of Exchange Control Manual and thereby rendered himself/themselves liable to be proceeded against under Section 50 of the FERA, 1973. Accordingly, a Show Cause Notice was issued to the said M/s Owens Brockway (I) Ltd. and its Directors S/Sh. Shyam Sunder Lal, Hemant Luthra, S.K Gupta & Gursharan Singh Johar, to show cause in writing within 30 days from the receipt of memorandum, as to why adjudication proceedings as contemplated under Section 51 of Foreign Exchange Regulation Act, 1973 read with sub-section (3) & (4) of Section 49 of Foreign Exchange Management Act, 1999 should not be held against them for the aforesaid contravention. Along with show cause notice, list of relied upon documents Annexure-B was also annexed and the case was fixed for personal hearing. The details of Annexure-A and Annexure-B are reproduced as under : - Annexure-A S. No. Amount of Remittance Date Name of the Authorized Dealer 1. NLG 39021.75 13.07.1998 ABN Amro Bank, Sansad Marg, New Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shareholding, the name of the existing company M/s Owen Brockway (I) Ltd. was changed to M/s ACE Glass Container Ltd. with effect from 15.03.2002 and the registered office was also changed from E-13, Green Park Main, New Delhi to W-27, Greater Kailash-II, New Delhi-110048. The necessary intimation in this regard was filed with the Registrar of Companies, NCT of Delhi.Thereafter, M/s ACE Glass Container Ltd. merged with M/s Hindustan National Glass & Industries Ltd. vide Order dated 19.03.2008 passed by the Hon'ble High Court of Delhi and also Order dated 07.04.2008 passed by the Hon'ble Kolkata High Court. The appellant company received a Certificate of Public Demand dated 04.06.2012 from the Certificate Officer, South 24Pargana, Alipore, Kolkata, wherein a demand of Rs.2 Crores was raised. (Page 13 & 14 of the Appeal memo). The appellant company approached the enforcement office and requested for supply of the documents on the basis of which the alleged demand has been made.The Directorate of Enforcement vide their letter dated 12.07.2012 provided the copy of Memorandum of Show Cause Notice (Page No. 26 to 29 of the appeal memo) and also Impugned Adjudication Order vide w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd served upon the present appellant, which mentions the name of the defaulters, not of M/s Owen Brockway (I) Ltd., but of M/s ACE Glass Container Ltd. and the present appellant. Accordingly, he stressed that it seems that the change of the guard and also the status of the previous company i.e. M/s Owen Brockway (i) Ltd. was within the knowledge of the Department of Enforcement and by not sending any such intimation on these two companies has led to miscarriage of justice. On merits of the appeal, he pointed out that the ex-parte proceedings had also resulted miscarriage of justice, as the SCN refers to a remittance at Serial No.4 as NLG 4207750.00 dated 30.03.1998, which is in fact wrong and incorrect. The actual remittance was for FRF 420750 for the imports made from M/s GG Cade Industries Ltd., England for import of Glass Enamel, as could be found out from the old records by the present appellant (at Page 25 to the appeal memo). Ld. Counsel for the appellant submitted that the present appellant has been saddled with the huge liability of penalty amount for a violation which was merely technical in nature and that too committed by the previous company,&nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention here that appellant also filed copy of invoice acknowledgement of ABN Amro Bank for receiving the import documents on 17.06.1998 which is at page 22 of the appeal paper book with respect to remittance of NLG 26658.75. With respect to remittance of NLG 4207750.00 dated 30.03.1998, appellant has taken the plea that in-fact the said remittance was FRF 420,750.00 for importing goods from France through M/s GG CADE Industries Ltd. of England. The original invoice of the same is at page 25 of the appeal paper book which reflects the date of invoice as 03.01.1997. Accordingly, it was asserted that remittance of NLG 4207750.00 mentioned in Annexure A of the show cause notice is false and incorrect, being an inflated amount having extra digit 7 and with wrong currency NLG, instead of FRF. Prayer is accordingly made to set-aside the impugned Adjudication Order-in- Original No. SDE/SKP/III/73/2002 dated 04.08.2003 in F. No. T- 4/440-D/2002 passed by Ld. Special Director, Directorate of Enforcement and consequent Certificate of Public Demand raised against the appellant company. 4. On the other hand, Ld. Counsel for respondent ED submitted that M/s Owen Brockway India Ltd. has not file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries Ltd. of England. The original invoice of the same is at page 25 of the appeal paper book. Therefore, the status of the imports qua the various remittances should be as under:- S. No. Amount of Remittance Date Proof of Import 1. NLG 39021.75 13.07.1998 B.E.1711 dated 11.06.1998, invoice dated 11.05.1998 2. NLG 26658.75 B.E. 1711 dated 11.06.1998, invoice dated 11.05.1998 3. NLG 31764.12 No proof annexed 4. FRF 420750.00 30.03.1998 Invoice dated 03.01.1997 5. NLG 45149.15 07.08.1998 No proof annexed Total NLG 142593.77 FRF 420750.00 From the above, it is clear that appellant company is able to prove the import of consignment with respect to three remittances and the only contravention is with respect to two remittances of NLG 31764.12 and NLG 45149.15, totaling to NLG 76913.27. Therefore, the total contravention is not equivalent to NLG 43,503,43.27, but only NLG 769,13.27 i.e. only 1.76% to the alleged contravention, as inadvertently/wrongly mentioned in the impugned order. Therefore, in the facts and circumstances of the case and in the interest of justice, the penalty amount needs to be reduced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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