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TMI Blog2015 (3) TMI 1165X X X X Extracts X X X X X X X X Extracts X X X X ..... artered Accountant assisted by Ms. Natasha Sarkar, Legal Consultant, for the Respondent. ORDER [Order per : V.K. Mathur, Chairperson]. - The appellant has moved an application for amendment in the Memo of appeal contending that the appeal filed by the appellant against the Adjudication order, dated 31-3-2010 is pending adjudication and has not been heard so far. Against the common impugned/adjudication order, the Managing Director, Directors and Vice-President have also preferred connected appeal Nos. 130-133/2010. It has also been contended that the challenge in the appeal to the impugned order inter alia is on the grounds that the impugned order has been passed on irrelevant material ignoring relevant considerations and the same is illegal, arbitrary and unsustainable on facts and law. The impugned order has incorrectly held that as a result of non-realization of export proceeds, the applicant/appellant had contravened the provisions of Sections 7 8 of FEMA, 1999 read with Foreign Exchange Management (Export of Goods and Services) Regulations, 2000. It has been contended that significant developments have taken place after the filing of the appeal which are relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28 of FEMA, 1999. It has also been contended that FEMA, 1999 is a complete code and the Tribunal has the power to lay its own procedure based on the principles of natural justice as Rules 10-14 of Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 the said rules do not prescribe any amendment of the pleadings. The Tribunal is to determine whether the amendment is necessary for the purpose of determining the real question in controversy between the parties. The rules are framed by the Central Government under Section 46 of the Act and smuggling through the provision of order VI Rules 17 CPC would be ultra vires. 4. It has also been contended that the motive behind moving the application is to ask the Tribunal to examine and weigh evidence submitted, regarding alleged realization which is beyond the scope of Section 19 and Section 28. It has also been contended that by introduction of para R appellant proposes to challenge the jurisdiction of the Special Director while in para S the appellant raises the issue of limitation. The proposed amendment for para T to X are beyond the scopes of Foreign Exchange Management (Export of Goods and Services) R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rict this Tribunal or Special Director (Appeals) from following procedure under CPC. The provisions of CPC are in consonance with the principles of natural justice. The contentions of paragraph 9 of the objection have also been denied and it has been pleaded that the entire chain of events which have taken place in the said matter subsequently after filing of the instant appeal and which are germane to deciding the instant appeals could not have been foreseen by the applicant earlier, therefore, they have to be brought on record. It has also been stated that there is no impediment under Sections 19 and 28 of FEMA, 1999 in moving the amendment application. The contention of paragraph 10 of the objection have also been denied reiterating the contentions of the applicant. It is stated that the matter for writing off was pending before the RBI and the impugned order could not have been passed by the Special Director. The contentions of paragraph 12 have also been denied. In reply to paragraph 13 of the objection it has been stated that the reliance placed on the applicability of the Section 19 FEMA which is misplaced as no statutory period is prescribed either under the FEMA or rules t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Ors. v. K.K. Modi and Ors. - (2006) 4 Supreme Court Cases 385 in which the Hon ble Supreme Court dealing with order 6 Rule 17 has said that the object of the rule is that the Court should try the merits of the case that comes before them and consequently may allow all the amendments that may be necessary for determining the real question in controversy. It has also been held in the judgment that the role of amendment is essential and role of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties. 10. Reliance has also been placed on Pasupuleti Venkateshwarlu v. The Motor General Traders - (1975) 1 Supreme Court Cases 770 in which it has been held that the procedure is handmade and not a mistress of the judicial process. If a fact comes to the Court and has the fundamental impact on the right to relief or the manner of moulding and is brought diligently to the notice of the Tribunal, the Tribunal can not blink at it or be blind to efforts or render inept the desired remedy. 11. Reliance has also been placed on Abnash Kaur v. Avinash Nayyar in CM(M) 269 of 1973, decided on 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court framed a question as to whether it was imperative for the Hon ble Supreme Court to adopt the procedure prescribed under Section 51 and other allied Provisions (Order 21 Rules 37 and 40) of CPC. It has been submitted that in the said judgment the Hon ble Supreme Court has held that the Securities Appellant Tribunal shall not be bound by the procedure laid down by the code of civil procedure but shall be guided by the principles of natural justice. It has also been submitted that the provisions under Section 15U of SEBI Act are pari materia to that of Section 28(1) of FEMA, 1999. 14. We have considered the submissions of ld. counsel for the appellant as well as ld. Presenting Officer/CA. 15. It is true that Section 28 FEMA, 1999 which prescribes the procedure and powers of the Appellate Tribunal and Special Director (Appeals) does not specifically mention under sub-section (2) power to allow amendment . Further it has been provided under sub-section (1) of Section 28 that the Appellate Tribunal and the Special Director (Appeals) shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, but shall be guided by the principles of natural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, though the provisions of order 6 Rule 17 CPC have not been made applicable directly under FEMA 1999, however, very the object of permitting amendment in pleadings and the requirement of bringing material/substantial subsequent developments in proceedings which are of quasi civil nature have not been put to judicial scrutiny by the Highest Court of the land in the matter of Subrata Roy Sahara. The basic purpose behind moving the amendment application appear to be to place the subsequent developments in connection with realization of export proceeds. It is stated that the export proceeds were realized subsequent after the passing of Adjudication Order and the institution of appeal and write off allowed by R.B.I. 20. The effect of realization of the export proceedings subsequently to the passing of the Adjudication Order will be seen at the time of final disposal of the appeal. This in our view is not an appropriate stage to consider the merits of the arguments that since, prima facie a technical violation is made out the amendment application should be rejected. In Pasupuleti Venkateswarlu's case the Hon ble Supreme Court has gone to the extent of observing that equity j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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