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TMI Blog2018 (9) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... d order dated 8.9.2004. - FPA-FE-24/HYD/2012 - - - Dated:- 31-8-2018 - Justice Manmohan Singh, Chairman For the Appellant : Mr. C.S. Subrahmanyam, Advocate Mr. K.S. Kumar, Advocate For the Respondent : Shri Prashant Pandey, Legal Consultant JUDGEMENT FPA-FE-24/HYD/2012 1. Aggrieved by the Order of the adjudicating authority, Chennai in SCN No. LT-4/29-BAN/2002 dated 8.9.2004, the present appeal has been filed by the appellant. The order was passed imposing a penalty under Section 50 of erstwhile FERA, 1973 of ₹ 30 lacs for violation of the provisions. 2. It is the plea of the appellant that the Order on 8.9.2004 was served on the Company on 24.07.2012. The name of the Company against which the said order was originally passed was Advance Radio Mast Ltd. Later on, the name has been changed ICOM Tele Ltd and finally it had been changed to ICOMM. 3. Few facts are that the appellant had obtained certain foreign currency on the following dates through Indus Ind Bank Ltd, Mumbai for import of goods. Further the Order records that the appellant had failed to submit documentary evidence in support of actual import towards which the said foreign exchange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to seek the appellate remedy before the Appellate Tribunal U/s. 19 of the FEMA Act. 7. The Company had subsequently transferred the Cable division in respect of which the above said equipment was imported to Sterilite Optical Technologies Ltd, Aurangabad. The company is not carrying on the said business any more. The Company is currently engaged in the business of executing EPC contract business. It is stated on behalf of the appellant that the said business is capital intensive and is adversely effected due to poor collection of outstanding bills from various customers. The company is suffering from extreme cash crunch to carry out its business operations. The company is even otherwise not in a position to pay the penalty of ₹ 30 lakhs as it would cause undue hardship to the appellant. 8. There is no dispute that the impugned penalty pertains to events relating back to the year 1995 when the appellant acquired foreign exchange through Indus Ind Bank for import of goods. More than six years later, in the year 2001, the Enforcement Directorate, Mumbai wrote letters to the appellant intimating that it has started investigations against the appellant for failure to subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal in this regard. Paragraph-7 of the said order is extracted hereunder: The appellant has filed copy of letter of the Enforcement Directorate dated 20-7-2011 whereby the appellant was required to submit proof regarding timely submission of copy of bill of entry (exchange control copy) to the authorised dealer. The same has bee filed as Annexure A to the compilation dated 24-09-2013. In response to this communication the appellant, vide his response dated30-7-2001, copy of which has been filed as Annexure B , has furnished the details of acknowledgement slip issued by the authorised dealer i.e., Indus Ind Bank to the Chief Enforcement Officer, Mumbai. The same has been filed as Annexure B to the said compilation. Annexure C D are the acknowledgements regarding the disputed bills of entry which were received by the Indus Ind Bank, Mumbai from the appellant. This Appellate Tribunal recorded in paragraph-8 of its order dated 25.11.2014: the company was not in existence at the place where the service was effected through affixation, therefore, there is substance in the argument of the ld. Counsel for the appellant that due service was not effected upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, the Hon ble Court vacated the order of the Hon ble Tribunal. 16. In the case of Priya Shah vs Enforcement Directorate LPA 157/2009 CM No. 5274 5274 of 2009 dated 25-5-2009, the facts were that one Late Satnam Shah held bank accounts in Switzerland and UK. His daughter Ms. Priya Shah was joint owner in respect of one account. After the death of her father, she was under a duty to repatriate the foreign funds to India through banking channels. For alleged failure to follow the procedure laid down by FERA, penalty of ₹ 2.75 crores was imposed by the Enforcement Directorate on Ms. Priya Shah. Her application for waiver of pre-deposit was only partially. 17. The appellant submitted documentary evidence showing that the appellant was receiving regular communication from various quarters at the Habsiguda address during the relevant period i.e., in the year 2002 2003. The appellant company was registered with Central Excise authorities being a manufacturing company. It was on the rolls of the Income Tax Department. When its regd. Office was shifted w.e.f. 31-03-2003, the company intimated the Registrar of Companies by filing the prescribed form along with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind the defendant that a service by affixture can be effected. 24. There is inordinate and unreasonable delay of 6 years before the Enforcement Directorate initiated as unwarranted investigation and further delay of eight years before the appellant was made aware of the impugned order passed behind its back. In this connection the appellant relies on a decision of the Income Tax Appellate Tribunal, E Bench, Mumbai dated 09- 09-2014 in the case of Sanjay Badani and others Vs. DCIT in S.A. No. 216/MUM/2014 (in ITA No. 5221/MUM/2014) and other appeals. In this case the service of notice by affixture was held invalid for the reason that the procedure laid down in Order V rules 17, 19 and 20 was not followed. 25. In this connection, the appellant has brought to the notice of the Tribunal that the submissions made in this regard and the evidences produced before the Tribunal were considered during the course of hearing of the appellant s petition for waiver of pre-deposit. The observations of the Tribunal contained in paragraph 8 of its order dated 25-11-2014, extracted hereunder are apposite. 8. The report of the process service clearly indicates that the office of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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