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TMI Blog2008 (12) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... one Naresh T. Mehra, who had been proprietor of M/s. Brooks International. It is contended that despite admissional statement of respondent Mahendra M. Ruparel regarding nor importing goods of the kind and quality under taken as per Section 8(3) and 8(4), the adjudicating officer has exonerated these respondents, especially when the respondents worked for Naresh T. Mehra, who floated or managed certain partnership firms or proprietorship concerns, for import of the low-valued books showing higher price and also used names of certain other firms and proprietorship concerns for making over-invoiced import of books. 3. We have heard Shri A.C. Singh, DLA, on behalf of the revisionist when arguments on behalf of respondents are advanced by Shri Ravi Mehrotra, Advocate, who has also filed written submissions which are taken on record. 4. These revision petitions are filed on 6.9.2001 against the adjudication order dated 11.5.2000. The total period consumed in filing of these revision petitions from the date of passing of the adjudication order comes to 1 year 3 months and 25 days but the Enforcement Directorate has not explained the delay or how this total period is consumed. Further, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for that very reason these revision petitions are filed. According to him, Section 52(4) allows suo motto revisional powers even where no application/petition is filed before ATFE. Further, he contended that it is inherent in the provisions of Section 49 Foreign Exchange Management Act, 1999, whereby pending appeals before FERA Board are transferred to ATFE that revision/appeals either pending before FERA Board or which had not yet been filed can be filed before ATFE, if otherwise maintainable. The contentions are that revisional jurisdiction of this Tribunal is required to be exercised which is exceptionally granted to ATFE/FERA Board and any technicality, even if arises, cannot oust the ATFF from exercising revisional powers so that purity course of justice is maintained. 7. It is correct, as contended by Ld. Counsel Shri Ravi Mehrotra, that appellate jurisdiction and revisional jurisdiction do not resemble each other. The revisional jurisdictional can only be exercised where there is a jurisdictional error or disregarding of an evidence otherwise requiring consideration or giving a different meaning to a material evidence a contrary to settled legal position. Generally, revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed before ATFFE which is a newly replacing appellate forum. This is not only implicit in the language of repealing Act but is also as per legislative scheme. Thus, these revision petitions have been filed and taken in pursuance of Section 52(4) to the new forum of ATFFE who has replaced the FERA Board under the new Act of 1999 and remedy available under old Act is also available as specified by Section 6(e) General Clauses Act. Moreover, the appeals or revision petitions before the ATFFE are in continuation of adjudication proceedings so will be governed by the provisions of FEM Act, 1973, whose provisions are specifically saved by Section 49(4) FEM Act, 1999. Therefore, these revision petitions have been filed and are to be decided under law proper which is none else but Foreign Exchange Regulation Act, 1973. The argument that these revision petitions cannot be filed or entertained under Section 52(4) contains no merit and is liable to be rejected. 10. The language employed by Section 49(4) FEM Act, 1999, clearly stipulates that all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act has not been repealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear legislative intention the rights and liabilities under repealed statute cannot be obliterated and stated as follows :- 73. On critical analysis and scrutiny of all relevant cases and opinions of learned authors, the conclusion becomes inescapable that whenever there is a repeal of an enactment and simultaneous re-enactment, the re-enactment is to be considered as re-affirmation of the old law and provisions of the repealed Act which are thus re-enacted continue in force uninterruptedly unless, the re-enacted enactment manifests an intention incompatible with or contrary to the provisions of the repealed Act. Such incompatibility will have to be ascertained from a consideration of the relevant provisions of the re-enacted enactment and the mere absence of saving clause is, by itself, not material for consideration of all the relevant provisions of the new enactment. In other words, a clear legislative intention of the re-enacted enactment has to be inferred and gathered whether it intended to reserve all the rights and liabilities of a repealed statute intact or modify or to obliterate them altogether. 14. It is well-settled in law that the legal proceedings validily institute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that revision petition is required to be filed within a reasonable period and any unnecessary delay will prove fatal if waiver is demonstrated. On the question of reasonable time, this Tribunal seeks to refer a recent judgment in E.S.I. Corporation v. C.C. Santhakumar JT 2006 (10) SC 549 where Hon'ble Supreme Court slated as follows :- 35. A reasonable period would depend upon the factual circumstances of the ease concerned. There can not be any empirical formula to determine that question. The court/ authority considering the question whether the period is reasonable or not has to take into account the surrounding circumstances and relevant factors to decide that question. 36. In state of Gujrat v. Patel Raghav Natha 1969 (2) SCC 187 it was observed that when even no period of limitation was prescribed, the power is to be exercised within a reasonable time and the limit of the reasonable time must be determined by the facts of the case and nature of the order which was sought to be varied. This aspect does not appear to have been specifically kept in view by the Division Bench. Additionally, the points relating to applicability of the Andhra Pradesh Assigned Lands (Prohibit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e convey more or less the same idea . 39. According to Advanced law lexicon by P. Ramanatha Aiyar 3rd Edition, 2005 reasonable time means as follows : That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer. Reasonable Time is defined to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duly requires should be done in a particular case. If it is proper to attempt any definition of the words reasonable time , as applied to completion of a contract, the distinction given by Chief Baron Pollock may be suggested, namely, that a reasonable time means as soon as circumstances will permit. In determining what is a reasonable time or an unreasonable time, regard is to be had to the nature of the instrument, the usage or trade or business, if any, with respect to such instrument, and the fact of the particular case. The reasonable time which a passenger is entitled to alighting from a train is such time as is usually required by passengers in getting off and on the train in safety at the particular station in question. A reasonable time, looki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be thrown out only on delay, except where clear proof of waiver and acquiescence is available. As no proof of waiver or acquiescence on behalf of revisionist is available, so we are required to hold that these revision petitions are maintainable. It is also necessary to keep in mind that any faulty action of delay can neither harm the public interest nor can go to benefit the respondents to the detriment of revisionist. Moreover, faulty indolence by one or two individual officials cannot be allowed to go unchecked and their negligence, if any, cannot be attributed to the revisionist. 18. It is also argued by Ld. Counsel that Directorate of Enforcement is not a corporate body, hence, is not entitled to file these revision petitions which can only be filed by Union of India and none else. However, on factual position, it is nobody's case that these revision petitions are filed by the adjudicating officer who was involved in passing the impugned order. These revision petitions are filed by Dr. Shamsuddin, DLA, who is also engaged in presenting arguments, day to day, on behalf of Directorate of Enforcement before ATFE. 19. It is amply clear from the language employed in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions worked as clearing agent of the aforesaid imported goods but the impugned order has only discussed about the small percentage of commission taken as clearing agent by respondents. There is no discussion that why and how the respondents are not abettor of the contravention. The abetment can be committed by (1) intentional aiding or (2) instigating or (3) engaging in conspiracy. All these activities can possibly happen even when acting as commission agent. Here, it will be pertinent to mention the observations of the Apex Court in Collector of Customs, Madras v. D. Bhoormull AIR 1974 SC 859 which reads as under : 30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167 to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olen property , though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. 22. It is also not necessary that every possible evidence must come out from investigation but the situation, whatever it is, has to be adjudged in a proper manner. The impugned order has not discussed the situation available in the piece of evidence against the respondents but has only discussed the low amount of commission received by respondents. The receipt of low amount of commission can hardly be a justification of exoneration but the association of respondents with the charged person, i.e. Naresh T. Mehra, is on the scene which requires a better look and proper consideration. 23. Looking towards above situation, we hold that these revision petitions are maint ..... X X X X Extracts X X X X X X X X Extracts X X X X
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