9911796707
TMI Blog2018 (9) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... iled to submit documentary evidence in support of actual import towards which the said foreign exchange currency was utilized to pay. Date Amount (Rs.) Name of the Bank 30.01.1995 11.91 lakhs Indus Ind Bank Ltd, Mumbai 05.06.1995 24.57 lakhs Indus Ind Bank Ltd, Mumbai 30.05.1995 49.14 lakhs Indus Ind Bank Ltd, Mumbai 05.04.1995 8.67 lakhs Indus Ind Bank Ltd, Mumbai 4. It has come on record that the alleged foreign currency was utilized by the appellant for the purpose of importing telecommunication equipment from Rosendhal, Austria. These amounts represent 10% of the balance of the invoice value raised by the vendor. The total amount due against the vendor was paid in two instalments of 90% and 10%. The documentary evidence to demonstrate for both the payments is the bill of entry for the import of the said goods through the same invoice. The same evidence was produced to the Indus Ind Bank Ltd for the purpose of withdrawing the said foreign exchange. The documentary evidence already submitted for 90% of payments by the Company holds good for release of balance 10% of payment to vendors towards purchase of imported equipment. 5. According to the O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey furnished necessary documentation to the authorities of the Enforcement Directorate, Mumbai showing the utilization of foreign exchange. The said letter was acknowledged by department on 30.07.2001 as per acknowledgement stamped on the face of the letter. 10. The appellant also received enquiries from the Indus Ind Bank Ltd., Mumbai and responded to the same and furnished copies of relevant documentation showing compliance with the FERA Regulations in respect of the impugned transactions. It is noteworthy that the said correspondence with the Enforcement Directorate, Mumbai and Indus Ind Bank, Mubai as also the authorities of the IAAI, Chennai took place during the year 2001 and 2002. 11. It is stated by the appellant that more than a decade later, in the month of July, 2012, the appellant received a telephonic call from the office of the Enforcement Directorate, Hyderabad asking the appellant to appeal before the enforcement authorities. When the representative of the appellant visited the office of the Enforcement Directorate, the authorities informed that a sum of Rs. 30 lakhs was payable by it towards penalty imposed. On being informed that the appellant was unaware of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms, Excise and Gold (Control) Appellate Tribunal [CEGAT] before whom the appellant filed appeal, directed partial payment of the demands raised. On failure of the appellant to pay the amounts as directed, the appeal was dismissed. In further appeal, the Hon'ble Kerala High Court held that in exercising discretion under proviso to Sec.129E of the Customs Act (which is in parimateria with Sec.19 of FEMA, 1999), the Tribunal should consider, at least prima facie, the question involved in the appeal. Inter alia, the existence of a prima facie case on merits constitutes an important relevant factor in the consideration of the question of undue hardship. This is so because it causes undue hardship to any assessee to be called upon to make payment of amounts which are not legally due. .......After considering the facts and circumstances of the case, and also the fact that the assessee already paid Rs. 1,50,000/-, the High Court vacated the order of the Tribunal directing the assessee to pay Rs. 2.5 lakhs. 15. In the case of Virender Kumar Yadav vs Union of India & Others WP No. 1793/2008, the Delhi High Court, in its Order dated 19-8-2009 set aside the order of the Appellate Tribunal fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence furnished by it showing compliance with the law ought to have been into account before initiating investigation against the appellant. If such evidence were taken into account, there would have been no necessity for initiating penalty proceedings. 19. It appears that the evidence submitted by the appellant has been ignored by the authorities who initiated investigation. The impugned order passed by the Adjudicating Authority states that the appellant did not respond to take a memorandum issued on 25-5-2002 as the said notice was not served on the appellant. The Adjudicating Authority was appointed by notification dated 20- 03-2003 by which time the limitation for taking notice of any contravention under Section 51 of FERA 1973 expired. 20. The order of the Adjudicating officer states that when the adjudication proceedings came before him, he also issued notices which were returned unserved with the endorsement "office shifted" and that he decided to serve the notice through the Enforcement Directorate, Hyderabad who served the same by affixture on 13-07-2004. 21. The registered office of the appellant remained at the same address in Habsiguda, Hyderabad till 31.03.2013 at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is substance in the argument of the ld. Counsel for the appellant that due service was not effected upon the appellant." 26. Even in the earlier order dated 15.04.2014 condoning delay in filing appeal, the Tribunal noticed the fact that there was no personal service of the show cause notice and even the service by affixture can also not be held to be sufficient. The relevant portion from paragraph 6 of the Tribunal's order is extracted hereunder: "6. In view of the fact that no personal service of the show cause notice was effected upon the appellant and the service by affixation can also not be held to be sufficient due to the fact that the appellant company as per the statement of the witnesses of service as reproduced in the order had vacated the premises" 27. The appellant has also raised additional grounds which read as under: 1. The learned Adjudicating Officer erred in not taking note of the compliance of the notice from Enforcement Directorate, Mumbai before assuming the violation before the expiry of two years from the date of FERA was revealed. 2. The levy of penalty is against law and facts as the compliance, by the company, of filing documentary evidence in s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
