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TMI Blog2008 (6) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise revisional jurisdiction and to set aside the impugned order whereby respondents are exonerated from the clearly established contravention of Sections 9(1)(b), 9(1)(d) r/w Section 68 FER Act, 1973. 4. Per contra, Ld. Senior Counsel Shri A.N. Haksar, contended that revisional jurisdiction is totally different than of the appellate jurisdiction. According to him, the revisional jurisdiction is much more narrower and does not involve rehearing on facts and law. He contended that revisional jurisdiction is analogous to the power of superintendence and is granted for the purposes of keeping the subordinate adjudicating authority within the boundaries of its authority. 5. Ld. Senior Counsel further argued that this Tribunal can only exercise power of revisional jurisdiction to effectuate the legislative purpose and it has to be exercised in reasonable manner. According to Ld. Senior Counsel the exercise of power of revision in reasonable manner inheres the concept of its exercise within a reasonable time as held in Manasram v. S.P. Pathak (1983) 1 SCC 125 at 136 Para 136. Also, on the question of exercise of revisional jurisdiction within a reasonable time, reliance is placed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mind. Same situation is projected by the act of filing of these revision petitions because the signatory of these revision petitions is not an authorized person entitling to file the revision petition. This is more so when serious illegality is correctly not brought out and neither perversity of the impugned order is projected that how the impugned order can take that colour. Though revision petition is filed after 1 year 10 months and 12 days but serious application of mind is not shown in this filing of these revision petitions. 10. Despite above deficiency in filing of these revision petitions, we have to examine the question raised on merits of the whole issue. Mere technicality will not permit dismissal of these revision petitions. Similarly, bad draft of these revision petitions has to be ignored. 11. We agree with the arguments advanced by Ld. Senior Counsel Shri A.N. Haksar that revisional jurisdiction is not same or similar as of the appellate jurisdiction. The revisional jurisdiction can only be exercised to correct serious illegality and this is a provision for keeping the lower authority within the boundaries of law. The revisional jurisdictional can only be exercised w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y repealing Act of 1999, any order passed by Assistant Director or Deputy Director, Enforcement Directorate, will go to the newly created appellate forum of Special Director (Appeals) which is the substituted forum as per the judgment of Bombay High Court in M/s Premier Ltd. v. Union of India 2007 (206) ELT 49 Bombay. According to Ld. Senior Counsel averments, the Enforcement Directorate or Central Government cannot come in revisional jurisdiction before ATFE but will be required to go to Special Director (Appeals) in appellate jurisdiction. 14. Here, it is absolutely clear from the provisions of FEM Act, 1999, that Special Director (Appeals) does not enjoy any revisional jurisdiction against an order passed by Assistant Director, Enforcement Directorate. As right of appeal or power of revision is a creature of statute so in absence of statutory provisions the revisional jurisdiction does not lie with Special Director (Appeals). Here, we can cite the judgment in Om Parkash Batish v. Ranjit @ Ranbir Kaur 2008 (6) Scale 428 at 431 The provisions of Section 17 do not provide for a revisional jurisdiction but this Tribunal is entitled to exercise revisional jurisdiction under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable period and not beyond that so that acquiescence and waiver once reached must not be disturbed against the opposite side. Also, in the absence of prescription of limitation period, the concept of condonation of delay or import of specific period does not come into picture. The delay can be explained so as to avoid fatal attack of latches and also to show absence of waiver or acquiescence. It is well-settled 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 stated as follows:- 35. A reasonable period would depend upon the factual circumstances of the case 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than 'directly', such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these 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 reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive evidence is required to be circumvented in the process of evaluation of evidence and a guilty cannot be acquitted merely on defect of investigation or defect of trial proceedings. Similar observations are found in Zahira Habibullah Sheikh v. State of Gujarat 2006 (3) Scale 104, Therefore, even if some more time is consumed by Directorate of Enforcement in filing of revision petition No. 331/2003, the revision petitions cannot 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 or Central Government. 21. Though these revision petitions are filed after expiry of 1 year 10 months and 12 days. This delay by itself will not fatal to the maintenance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-resident status, hence, filing of these revision petitions on merits is not maintainable because ignorance of fact by itself is sufficient to exonerate these respondents. 24. Against above averments, when we look to the impugned order at internal page 5, it is recorded that non-resident persons remitted foreign exchange subsequent to the alleged payments. It is further stated in the impugned order in last but one paragraph at internal page 5 that respondents made or received payment due to ignorance of law which is recorded in reply to the two SCNs by Respondent Nos. 1 to 4. There is no pleading recorded here of ignorance of fact but presently contended by Ld. Senior Counsel Shri A,N. Haksar. Also, it is clear from the allegations made in two SCNs that payment of Rs. 22,00,000 is made to M/s West Inn. Pvt. Ltd. who is Respondent No. 4 and payment of Rs. 11,31,000 is made to Respondent No. 5 working as Director of M/s Rcnuka Builders Developers Pvt. Ltd. Here, this an admitted position that payment is made without any permission of RBI for booking of flats/premises which these two recipients are likely to build in future. This is also an admitted fact that the money so paid is ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er will also affect the business because nobody Wants a neighbor of anti-social character. Therefore, name and piace of residence are necessary to be ascertained before booking. Therefore, the pleadings on behalf of Respondent No. 5 are untrue and false. 27. The impugned order has erroneously exonerated these respondents on wrong premises. The Findings and Order recorded in the impugned adjudication order clearly says that exoneration is made because the respondents were ignorant of law. As stated above, the ignorance of law cannot provide a valid defence to these respondents. Moreover, receipt of payment from abroad on subsequent date hardly makes a difference when Section 9(1)(b) and 9(1)(d) FER Act, 1973, clearly prohibits prior receipt of payment or making payment on behalf of non-resident person without permission of RBI. 28. Therefore, Respondent Nos. 1, 2, 3, 4 5 are required to be held guilty for contravention of the provisions of Section 9 FER Act, 1973. The Respondent Nos. 1, 2 3, who made payment on behalf of non-resident persons, have contravened the provisions of Section 9(l)(d) but Respondent Nos. 4 5, who received payment on the instructions of non-resident person, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rustrates entire purpose and object of introducing Chapter VIA to give teeth to the SEBI to secure strict compliance of the Act and the Regulations. 31. We feel that penalty of Respondent Nos. I, 2 3 can be appropriate if the amount imposed comes to Rs. 1,00,00,000 which is about three times of the amount involved when Section 50 permits imposition of five times penalty of the amount involved. Moreover, the conduct of all these Respondent Nos. 1 to 3 is blameworthy who have played a vital role as kingpin in the violation of provisions of Foreign Exchange Regulation Act, 1973. Thus, the amount of penalty of Rs. 1,00,00,000 each against Respondent Nos. 1, 2 3 will fit in the circumstances as well as of the person involved in this case. We also pronounce a penalty of Rs. 66,00,000 against Respondent No. 4 and a penalty of Rs. 34,00,000 against the Respondent No. 5 for contravention of Section 9(1)d) Foreign Exchange Regulation Act, 1973. 32. For the reasons stated herein above, these revision petitions are allowed. The impugned order is quashed and set aside. The Respondent Nos. 1,2 3 are imposed a penalty of Rs. 1,00,00,000 each and the Respondent Nos. 4 5 are imposed with a penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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