2016 (6) TMI 1187 - HC - FEMA

Sentencing the petitioner solely on the basis of uncorroborated testimony of sole witness Mr.Chanderkant Khemka - Held that - Admittedly, the remedy of appeal is available against the impugned order under Section 17 of the Foreign Exchange Management Act, 1999. Since, the petitioner has an alternative efficacious remedy, the present writ petition is dismissed. However, the petitioner is given liberty to raise all his pleas and contentions before the Appellate Authority in accordance with the law.

Summary

Issues:
Challenge to order of Adjudicating Officer, Lack of opportunity to examine witness and documents, Availability of remedy of appeal under Section 17 of FEMA, Interpretation of Section 35 of FEMA for appeal rights, Statutory forum for redressal of grievance, Dismissal of writ petition due to existence of alternative remedy.

Analysis:
The petitioner filed a writ petition challenging the order of the Adjudicating Officer, Directorate of Enforcement, dated 8th September, 2015. The petitioner's counsel argued that the sentencing was based solely on the uncorroborated testimony of a witness, Mr. Chanderkant Khemka, without providing an opportunity to examine the witness or inspect the original documents. It was contended that the petitioner was deprived of a fair hearing before the respondents.

The court noted that an appeal remedy exists under Section 17 of the Foreign Exchange Management Act, 1999 against the impugned order. Referring to the case of Raj Kumar Shivhare vs. Assistant Director, Directorate of Enforcement & Another, the court emphasized that the word "any" in Section 35 of FEMA encompasses all decisions or orders of the Appellate Tribunal, making them appealable to the High Court on a question of law.

Further, the court highlighted the importance of statutory forums for redressal of grievances, especially in fiscal statutes. It was emphasized that a writ petition should not be entertained if an alternative efficacious remedy is available, as it could circumvent statutory provisions such as limitations, court fees, or other conditions for appeal. The court cited the principle laid down in the Ratan case to support the dismissal of the writ petition in the absence of exceptional circumstances.

Consequently, the court dismissed the present writ petition due to the existence of an alternative remedy through appeal under Section 35 of FEMA. However, the petitioner was granted liberty to raise all arguments and contentions before the Appellate Authority in accordance with the law, ensuring the right to a fair hearing and legal recourse within the statutory framework.