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TMI Blog2008 (12) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... for contravention of section 4(1) read with section 23C(1) of FER Act, 1947 when S.S. Kothari was functioning as Director of appellant-company so was in-charge and responsible to the company on the reasons that appellants unauthorisedly acquired foreign currency of DM 47,500 which was paid to M/s. A. Knoevenagal West Germany by M/s. Kaiser Engineers International USA on appellants' behalf. 3. According to learned counsel, the appellants have made their pre-deposit of their respective penalty and these appeals are required to be heard on merits. We have heard arguments from Ms. Nupur Mukherjee, Advocate on behalf of appellants and Shri A.C. Singh, DLA, on behalf of Enforcement Directorate. Learned counsel Ms. Nupur Mukherjee has also fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asad Jain's case (supra). Lastly it is argued that the alleged payment between to foreign nationals has not caused any outflow of foreign currency. Moreover the appellants are held guilty for contravention of section 5(1)(a) and 5(1)(b) so the same transaction cannot made them guilty for another violation of section 4(1) of FER Act. Here it is clear to this Tribunal that there is no controversy that appellants imported Ingot Scalping Machine whose payment to M/s. A. Knoevenagal Germany, as supplier of goods is made by M/s. Kaiser Engineers Internationals USA. This part payment included 10 per cent advance of DM 47,500. There is no controversy that part payment is made on 11-2-1963, by M/s. Kaiser Engineers International USA to the would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creation of agency is immaterial. In the words of the Hon'ble Supreme Court following is stated: 27. For creating a contract of agency, in view of section 185 of the Indian Contract Act, even passing of the consideration is not necessary. The consideration, however, so far as the employer are concerned as evidenced by the Scheme, was to project their better image before the employees. 28. It is well settled that the purpose of determining the legal nature of the relationship between the alleged principal and agent, the use of or omission of the word 'agent' is not conclusive. If the employee had reason to believe that his employer was acting on behalf of the Corporation, a contract of agency may be inferred. 29. In DESU v. Basa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee of any cost to the employee. As to what is the arrangement between LIC and DESU, the employee is not concerned. In these circumstances, DESU cannot perhaps be held liable under the Act'. (p. 197) 7. As per the evidence on record, the payment is required to be made for the contracted goods by the appellants but due to pendency of RBI's permission such payment is made by M/s. Kaiser Engineers International USA. This payment is directly for the benefit of appellants herein. Hence, an agency can be assumed and such payment without permission from RBI amounts to violation of section 4(1) of FER Act, 1947, because it is made on behalf of appellant so has to be treated as payment by the appellants. Thus acquisition and transfer of forei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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