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TMI Blog2010 (9) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... 999 (hereinafter referred to as the FEMA‟), which was received by the petitioner/bank on 28.05.2002. In the said notice, respondent No.2 sought information in respect of certain expatriate employees from the petitioner/bank. On 30.05.2002, the petitioner/bank filed a reply on merits to the aforesaid notice and furnished the necessary information. On the same date, the Chief Enforcement Officer of the Directorate required the petitioner/bank to provide him with the details of the salaries paid abroad to expatriate employees, if any, by 31.05.2002, which was replied to by the petitioner/bank stating inter alia that the information had already been furnished under the letter dated 30.05.2002. 3. On 04.06.2002, a memorandum dated 31.05.2002 was issued by Mr. K.R. Bhargava in his capacity as Adjudicating Officer of the Directorate, intimating the petitioner/bank and one Mr. Ashok Khanna, of the violation under Sections 8(1) 9(1)(C) of the FERA, and calling upon them to show cause within 30 days of receipt of the said memorandum, as to why adjudication proceedings should not be held against them. As per the petitioner/bank, the said memorandum was received by the bank branch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the counsel for the petitioner/bank was recorded to the effect that the show cause notice did not constitute dispatch on the same date. It was admitted by the Department that the letter dated 08/09.05.2003 was not dispatched to the petitioner/bank. The objection taken by the counsel for the petitioner as to the maintainability of the proceedings in the light of the provisions of Section 49(3) of the FEMA was turned down by the Adjudicating Officer by holding that the notice issued to the petitioner/bank was in accordance with the requirements of Section 49(3). Lastly, the objection taken by the counsel for the petitioner/bank to the effect that there was already a draft order placed on the record, when there was no hearing granted by the department at all, was dealt with by the Adjudicating Officer by simply noting that the said draft was not a relied upon document or any official communication , and was a mere piece of paper . Hence, the request of the counsel for the petitioner/bank for a copy of the said document/inspection was turned down. 7. Counsel for the respondents submits that the issues arising in the present petition were summarized in the order dated 09.01.2006, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the petitioner/bank seeks to place reliance on Rule 10 of the Adjudication Proceedings and Appeals Rules, 1974, to state that the service of the notice on the petitioner was to be effected either by delivering or tendering the notice or order to the petitioner/bank in person or through its duly authorized agent or by sending notice or order to the addressee by registered post with acknowledgement due at the address of his place of residence or his last known place of residence or the place of work and if the notice could not be served in either of the aforesaid manners, by affixation at the last place of residence or work. He submits that the dispatch of notice by courier is, therefore, not in accordance with terms of the aforesaid Rules and cannot be considered as a recognized mode for effecting service on the petitioner/bank. He further states that this position was duly brought to the notice of the Adjudicating Officer, who turned down the said submission in the proceedings dated 13.01.2004, without giving any reason therefor. 11. Counsel for the petitioner/bank further submits that without prejudice to the aforesaid submission, on an assumption that the notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place in the absence of the Adjudicating Officer having arrived at any conclusion, one way or the other as to whether he was satisfied with the cause shown by the petitioner/bank before proceeding further with the adjudication. As a result, both, the notice to show cause dated 31.05.2002 and the proceedings held on 13.01.2004 are quashed and set aside. 14. This Court is also inclined to agree with the submission of the learned counsel for the petitioner that it is rather curious that there exists a draft order, on the record of the Department, as produced by the counsel for the respondent and examined by this Court. There is no explanation, much less plausible explanation offered by the other side as to how a draft order came on the file of the respondent on 06.01.2004, the date on which the counsel for the petitioner/bank carried out an inspection of the file of the Department, when by then only a notice to show cause had been issued to the petitioner/bank and a hearing had to take place on 13.01.2004, the date mentioned in the notice. It appears from the above that the respondents were only performing a formality of granting a hearing to the petitioner, when in fact, the fate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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