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TMI Blog2018 (4) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... - Writ Petition No. 677 of 2015 - - - Dated:- 21-3-2018 - S. C. DHARMADHIKARI PRAKASH. D. NAIK, JJ. Mr. Mathews Nedumpara with Ms. Rohini Amin, Ms. Sarika Gohil and Mr. Motwani for the petitioner. Mr. A. J. Rana-Senior Advocate with Mr. Rui Rodrigues and Mr. D. P. Singh for the respondents. (ORAL JUDGMENT) :- (Per S. C. Dharmadhikari, J.) 1. By this petition under Article 226 of the Constitution of India, the petitioner prays that the records pertaining to a show cause notice dated 16th May, 2002, the adjudication orders dated 19th October, 2004 and 29th March, 2014, passed by the fourth respondents (Exhibits 'P-1', 'P-2' and 'P-5') be called for and on a scrutiny thereof, they be declared as void ab initio. 2. The argument is that these orders have been passed by an officer coram non judice, in gross violation of the principles of natural justice. These orders have been passed without complying with the statutory requirements. 3. Prayer clause (b) is seeking a writ of mandamus or any other appropriate writ, order or direction, directing respondent no. 4 to produce before this court a copy of the purported information from the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. The tribunal's order, copy of which is at page 30 of the paper book is dated 1st November, 2007. The tribunal accepting the appeal, proceeded to quash and set aside the initial order of adjudication and directed a de-novo consideration of the issues, pertinent to the show cause notice. On remand, the petitioner participated in the proceeding before the adjudicating body, purported to raise the issue of jurisdiction, but the order-inoriginal, which was passed and against which the writ petition has been filed clearly holds that the petitioner's conduct is a factor which would enable the adjudicating authority to pass an order imposing penalty. That order dated 29th March, 2014 is now sought to be challenged in the writ petition before this court. Thus, now an argument on jurisdiction is raised for convenience. That is only to prolong the legal consequences flowing from the adjudication order. In these circumstances, according to Mr. Rana, we must not entertain this writ petition and proceed to dismiss it. 7. Mr. Nedumpara appearing for the petitioner would submit that we must firstly appreciate the nature of the jurisdiction vesting in this court under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicated in accordance with the FEMA, then, the pre-condition for such adjudication having not been complied with, the adjudication must fail. Mr. Nedumpara would submit that in the present case, there is no compliance. There is absolutely no reference to the authority of the adjudicating body. There is a violation of section 16(3) of the FEMA. The show cause notice being issued and adjudicated in violation of this prescription, it must fail on this count alone. Once the show cause notice itself does not survive, then, the order of adjudication will also fail. Mr. Nedumpara would submit that the provisions of FEMA will prevail. Thus, even if the FEMA is violated and by the effect of repeal of FERA by FEMA, the FEMA can be resorted to. Then, the pre-conditions having not been satisfied and as prescribed by FEMA, the whole adjudication is null and void. That is how the jurisdiction of this court to grant a writ of certiorari is invoked by the petitioner. According to Mr. Nedumpara, we must allow it to be invoked. Mr. Nedumpara has handed over to us copies of several judgments of the Hon'ble Supreme Court and he essentially relies upon the principles in one of the earliest cases. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rana also brought to our notice the stand of the petitioner before the adjudicating authority in the earlier round and expressly before the appellate authority/tribunal. In these circumstances, he would submit that we must not allow a just and fair adjudication to be defeated or frustrated on any technical ground. Even now, the respondents are ready and willing to render substantial justice is the submission made by Mr. Rana, on instructions. 10. Mr. Nedumpara would submit that now after a lapse of nearly a decade and more, the necessary proofs and materials cannot be available. The transaction is as old as of 22 years. Now the records in relation to that transaction are not available once the office of the petitioner was located in a building which has now collapsed. In that view of the matter and given this practical difficulty, no point would be served by relegating the petitioner to the same adjudicating machinery is, therefore, the argument of Mr. Nedumpara. 11. It is on the above arguments that we have to consider whether to entertain the petition or to grant any relief therein. We will have to notice a few facts before we can pronounce upon the submissions of the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reto, no reply was received from the petitioner. Therefore, a call notice dated 23rd October, 2003 was issued to the petitioner under Rule 3 of the Adjudication Proceedings and Appeal Rules, 1974, requiring them to appear for personal hearing on 7th November, 2003. It was served on them by the substituted form of service by affixation under Rule 9(C) of the FEMA (Adjudication Proceedings and Appeal) Rules, 2000 under panchanama drawn on 4th December, 2003. The petitioner failed to respond to the call notice issued. A summons dated 14th January, 2004 under section 53 of the FERA read with section 49(3) and (4) of the FEMA was also sent to the Branch Manager, Standard Chartered Bank, Fort Mumbai to ascertain the actual position of the case. In response to this summons, the Standard Chartered Bank, Fort branch, Mumbai, vide letter dated 27th January, 2004, intimated that the petitioner importer had submitted evidence of import in respect of remittance of ₹ 33,38,300/- and had not submitted the same in case of four remaining remittances. That is how the another call notice was served on the petitioner on 5th October, 2004 requiring them to appear for personal hearing on 12th Octo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fy the Adjudicating Officer of their bona fides and proper utilization of remitted foreign exchange. According to him, this is a fit case for remand for fresh adjudication. 4. Per contra Shri A. C. Singh, DLA, contended that the appellants are free to demonstrate before this Tribunal, the proof of import of goods against different remittances of foreign exchange and he opposed for remanding back the matter. 5. When we look to the pleadings on behalf of the appellants made by Shri Ashok Arora, Advocate, we feel that appellants have a case to answer before Adjudicating Officer who may decide the matter. This Tribunal being an appellate authority need not to go in different details of the proof led for import of the goods. The Adjudicating Officer may look to this aspect of the matter. We feel that there will be nothing amiss if this course of action will be taken up. Therefore, we set aside and quash the impugned order in these appeals and remand back the matter for fresh adjudication. An order is passed accordingly. The Adjudicating Officer may decide the matter preferably within six months from the date of first appearance of the appellants who are directed to appear befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both, factual and legal. Presently, the petitioner has no such desire and unless and until the preliminary issue is decided one way or the other, it would not place any material on the merits before the adjudicating authority. 19. It is after this that the impugned order dated 3rd April, 2014 has been passed. That is on a de-novo adjudication of the show cause notice. That was after giving effect to the tribunal's order dated 1st November, 2007. 20. The order of the adjudicating authority on remand notes that four opportunities for personal hearing were given, namely, 19th March, 2008, 12th May, 2008, 22nd July, 2008 and 4th August, 2008. The petitioner did not attend this hearing except the one on 22nd July, 2008 nor did the petitioner produce any document or proof of import. The adjudicating authority, therefore, proceeded on the footing that the petitioner is negligent and careless towards these adjudication proceedings. 21. Taking advantage of the time-lag and when the matters were placed on 11th February, 2014, 13th February, 2014 and 17th February, 2014, eventually on 17th February, 2014, the petitioner appeared and requested for adjournment for filing reply. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings. Therefore I consider the available material on record to decide the said case. From the documents available on file it is found that the noticee has not submitted any evidence in respect of remitances of ₹ 28,47,215/-, ₹ 62,16,661/-, ₹ 33,39,600/- ₹ 28,33,948/-. I also observe that the noticee has been given several opportunities for personal hearing but they have not responded with any satisfactory reply regarding submission of evidence of import for which the said remittances were sent abroad. Even their authorized dealer viz. Standard Chartered bank, Fort Branch, Mumbai vide their letter dated 27.01.2004 has confirmed that the noticee has not submitted the evidence of import in respect of remittances in question. On consideration of the above facts, I am convinced that M/s. ESAB India Ltd;, Mumbai had acquired and remitted foreign exchange equivalent to ₹ 28,47,215, ₹ 62,16,661/-, ₹ 33,39,600/- ₹ 28,33,948/- through their authorized dealer for the purpose of imports of goods but no documentary evidence was produced by them evidencing the import of goods. It is obligatory on the part of importer to produce the exch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a mixed one, it ought to have been raised at the earliest possible opportunity. There was enough opportunity for the petitioner to raise it and seek a ruling on it. It was not raised during the first round of adjudication. On the other hand, when in the first round of adjudication the petitioner appeared, it indeed relied upon a proof of import. It also relied upon a contemporaneous record of the Standard Chartered Bank. That is how one of the demand or issue came to be answered in their favour and by dropping the show cause notice. Thus, partial relief was derived by arguing the case on merits. This is a voluntary submission of the petitioner to the authority, competence and jurisdictiion of the forum adjudicating the show cause notice. Equally, aggrieved by the partial loss and the order to that effect, when the matter was carried to the tribunal, even before the tribunal, the petitioner had an opportunity to raise all the arguments as are raised before us by Mr. Nedumpara. They were not raised. It is expressly on the tribunal's findings and success that the petitioner's counsel/advocate desired an opportunity to produce the necessary documents or proof of import. That ..... X X X X Extracts X X X X X X X X Extracts X X X X
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