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TMI Blog2024 (7) TMI 1319X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the other authorities must be transferred to the appropriate authority with prospective effect for the purpose of continuance of further adjudication in the manner known to law. In the present case, such a transfer was effected from the file of the Special Director to the Additional Director of Enforcement. The present case has been transferred from Special Director to the Additional Director in view of the enhancement of pecuniary jurisdiction by the Ministry of Finance, Department of Revenue, vide notification dated 27.09.2018. Thus, this Court do not find any jurisdictional error or otherwise in the matter of continuation of further proceedings under the FEMA Act, by the Additional Director of Enforcement who is empowered to deal with the cases involving amount up to Rupees Twenty Five Crores, but not less than Rupees Ten Crores. In the case of the petitioner, the allegation is for a sum of Rs.11.27 Crores (Rupees Eleven Crores Twenty Sevel Lakhs) and therefore, the transfer of the case from the Special Director to the Additional Director of Enforcement is well within the provisions of the FEMA Act and the grounds raised by the petitioner fails. No writ against a Show Cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MA Act and therefore, the impugned notice was issued fixing personal hearing, enabling the petitioner to appear and defend their case by availing opportunities to be provided under the provisions of the Act and Rules. 5. The learned Senior Counsel Mr.Jayant Mehta, appearing on behalf of the writ petitioners would contend that the Show Cause Notice is untenable in view of the specific provisions under the FEMA Act and the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000. When the Act intended specific performance of the Authority, such authority alone is empowered to perform such duties as contemplated under the Act and Rules and in the present case, the adjudicating authority was originally the Special Director and the impugned Personal Hearing Notice had been issued stating that the Additional Director became the adjudicating authority pursuant to the notification dated 27.09.2018 and therefore, the impugned Show Cause Notice is liable to be set aside. 6. The learned Senior Counsel Mr.Mehta would further contend that the Special Director (adjudicating authority) is the higher authority to the Additional Director (adjudicating authority) and once the Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or an) is known as the indefinite article because it does not specifically refer to a particular g person or thing. On the other hand, the is called the definite article because it points out and refers to a particular person or thing. There is no doubt that, if Parliament intended that any proper officer could have exercised power under Section 28(4), it could have used the word any . 11. The Bombay high Court in the case of Shashank Vyankatesh Manohar Vs. Union of India (2014) 1 Mh.L.J. 838 while considering the rules held as follows. 11. It is the case of the petitioner that Special Director is not following the mandate of the Adjudication Rules while adjudicating the show cause notices. In such a case, if the case of the petitioner is correct, it becomes the duty of this Court to ensure that the authorities comply with the statutory provision while adjudicating the show cause notices. It would be convenient to reproduce Rule 4 of the Adjudication Rules, which reads as under:-- 4: Holding of inquiry:- (1) For the purpose of adjudicating under section 13 of the Act whether any person has committed any contravention as specified in that section of the Act, the Adjudicating Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in accordance with the provisions of Section 13 of the Act. (9) Every order made under sub-rule (8) of Rule 4 shall specify the provisions of the Act or of the rules, regulations, notifications, direction or orders or any condition subject to which an authorization is issued by the Reserve Bank of India in respect of which contravention has taken place and shall contain reasons for such decisions. (10) to (12)....... 12. On reading the above Rule, particularly sub-rules (1) and (3) thereof, it is clear that on the issue of show cause notice, a noticee is permitted to submit his reply to the same. In terms of the above Rule, the Adjudicating Authority has to consider the objections raised by the noticee and only if he forms an opinion that an inquiry should be continued further that the Adjudicating proceedings can be proceeded with, by issuing a notice for personal hearing. However, if the Adjudicating Authority is satisfied that the objections raised to the notice are valid, he may drop the show cause notice. The provision as found in Rule 4 of the Adjudication Rules is a unique provision. The Counsel for the parties were not able to point out any similar rules under which a two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of adjudication under Section 13, the Central Government may, by an order published in the Official Gazette, appoint as many officers of the Central Government as it may think fit, as the Adjudicating Authorities for holding an inquiry in the manner prescribed after giving the person alleged to have committed contravention under Section 13, against whom a complaint has been made under Sub Section (3) a reasonable opportunity of being heard for the purpose of imposing any penalty . 15. Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000, would contemplate the procedures to be followed by the adjudicating authority for conducting an adjudication. 16. In the present case, the point of jurisdiction has been raised. Section 2 (b) of the FEMA Act also defines Adjudicating Authority means an officer appointed by the Central Government under subsection (1) of Section 16 of the Act. That being so, the Court has to find out, who is the adjudicating authority under the Act in the present case for the purpose of conducting an adjudication. 17. No doubt, the final Show Cause Notice was issued by the Special Director on 23.02.2018. In respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the official gazette and appoint as many officers of the Central Government as it may think fit as the adjudicating authority for holding an inquiry. Enhancement of pecuniary jurisdiction is inevitable for public institutions. Even in judiciary, pecuniary jurisdictions are enhanced periodically considering the volume of cases pending before various Courts. Once such pecuniary jurisdiction underwent changes, the consequential action would be to transfer those cases to the appropriate Court holding pecuniary jurisdiction to deal with the case, irrespective of the fact whether it is a superior Court or Subordinate Court. Therefore, appointment of an adjudicating authority of a lower rank would not disentitle the said authority from conducting an adjudication under the FEMA Act and rules. Once the power to appoint an adjudicating authority is conferred on the Central Government and the Central Government, in exercise of power, issued a notification, no doubt the said notification is to be effected with prospective effect. While giving prospective effect, the cases which all are pending before the other authorities must be transferred to the appropriate authority with prospective effec ..... 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