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TMI Blog2007 (10) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the provisions of Section 9(1)(b), 9(1)(d) and 9(3) of the Act, alleging, inter alia, that during the period June 1989 to July 1990, he caused to remit various payments aggregating to Rs.2,81,73,700/- to India from United Arab Emirates (UAE) through persons other than authorized dealers. Cause was shown thereto by the appellant. The Special Director, however, adjudicated the matter and by an order dated 06.10.1993 imposed a penalty of Rs.2,50,000/- on the appellant in terms of Section 9(3) of the Act. Penalty was also imposed on one Shri Champalal Singhvi. 3. Aggrieved by and dissatisfied therewith, an appeal was preferred by the appellant before the Board. The Board allowed the said appeal, inter alia, holding: "12. It would appear from the above discussion that neither in the documents seized from Champalal Singhvi and those seized from the premises of Yousuf Kazia, nor in the statements of Champalal Singhvi and Kazia Brothers, there is any evidence of actual remittance of any amounts from abroad as alleged, even though prima facie that evidence may indicate distribution of amounts in India on the instructions from persons abroad....." It was fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to the conditions and limitations to authorize other officers such as officers of the Central Excise, or any Police Officer or any other officer of the Central Government or State Government to exercise the powers and to discharge the functions of the Enforcement Directorate or any other officer of the Enforcement Directorate under the Act as may be specified. So far as the entrustment of the functions of or authorization to exercise powers of the Directors or other officers of the Enforcement Directorate in favour of the officers other than those of Directors Enforcement consisting of Directors of Enforcement, Additional Directors of Enforcement, Deputy Directors of Enforcement, Assistant Directors of Enforcement and such other class of officers of Enforcement is concerned the Central Government is empowered under Section 5 of the Act to confer those powers on the officers referred to as above i.e., the officers of the Customs Department, Central Excise etc. But, the officers of the Enforcement Directorate as mentioned in Section 4(3) of the Foreign Exchange Regulation Act, 1973 can exercise the powers by virtue of the provisions of the Act. Section 54 of the Foreign Exchang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sider the question that the appellant had retracted from his confession, the impugned judgment is wholly unassailable. 8. Mr. Ashok Bhan, learned Counsel appearing on behalf of the respondents, however, relied upon a notification dated 22.09.1989, which reads as under: "In exercise of the power conferred by sub-section (1) of Section 4, read with clause (e) of section 3 of the Foreign Exchange Regulation Act, 1973 (46 of 1973), the Central Government hereby appoints Shri S.S. Ranjhan to be an officer of Enforcement with the designation of Special Director of Enforcement, for the purpose of enforcing the provisions of the said Act; and in exercise of the powers conferred by Section 51 of the said Act hereby empowers him to adjudicate cases of contravention of any of the provisions thereof, other than section 13, clause (a) of sub-section (1) of section 18 and clause (a) of sub-section (1) of section 19 or of any rule, direction or order made thereunder." 9. Before embarking upon the rival contentions raised on behalf of the parties, let us have to look at the relevant provisions of the Act. 10. Section 3 of the Act provides for classes of officers of Enforcement. Section 4 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ........................ Section 52 of the Act provides for an appeal to the Board. Section 53 thereof provides for the powers of the adjudicating officers and the Board to summon witnesses, etc. Section 54 which provides for an appeal to the High Court, reads as under: "Appeal to High Court. - 54. An appeal shall lie to the High Court only on questions of law from any decision or order of the Appellate Board under sub-section (3) or sub section (4) of section 52: Provided that the High Court shall not entertain any appeal under this section if it is filed after the expiry of sixty days of the date of communication of the decision or order of the Appellate Board, unless the High Court is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. Explanation. - In this section and in section 55, "High Court" means- (i) the High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and (ii) where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the judgment of the appellate authority whereby and whereunder its judgment has been set aside. An adjudicating authority, although an officer of the Central Government, should act as an impartial Tribunal. An adjudicating authority, therefore, in absence of any power conferred upon it in this behalf by the Central Government, could not prefer any appeal against the order passed by the Appellate Board. The Madras High Court in Rama Arangannal (supra) opined : "4. On the question as to the maintainability of the appeal, it is seen that the Explanation to Section 54 of the Foreign Exchange Regulation Act 1973 treats only the Central Government as an aggrieved party for the purpose of filing an appeal to the High Court in respect of orders passed by the Foreign Exchange Regulation Appellate Board under that section. Therefore, only the Central Government can file and prosecute an appeal against the order of the Appellate Board, and not any other authority, In this case, the appeal has been filed by the Director of Enforcement, who is the initial authority who passed the adjudication order against the respondents and whose order has been set aside by the Appellate Board on an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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