9911796707
TMI Blog1995 (11) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... have been found to be substantiated and a cumulative penalty of Rs. 52,000 has been imposed for the same. The appellant has complied with the directions made in this Board's order of 31-9-1995 disposing of dispensation applications in this and other related appeals of the appellant. This order disposes of Appeal No. 102 of 1994 on merits. 2. The charges as made out in the Show Cause Notice were that Process Instrumentation, the proprietary concern of Shri Mittal, the appellant herein, earned a commission of DM 28560.79 from Siegfried Theimer Gmbh, Hamberg; that during the period from 1983 to 1986. Process Instrumentation otherwise transferred foreign exchange equivalent to DM 15346.43, out of the said amount of DM 28560.79, to the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent had framed separate charges in the SCN and the learned Adjudicating Officer has referred to each of those charges while giving his findings. In the circumstances, it is not permissible in law to impose a cumulative penalty without indicating quantum of penalty for each charge of contravention. In view thereof, the impugned order as to the penalty is not legally sustainable. 6. It is seen from the impugned order that the appellant had claimed that the entire amount of commission earned by him has already been received in India through normal banking channel and he produced four certificates of remittances issued by the banks. The amounts received in Danish currency were for a total amount of DKR 59,403.62 equivalent to DM 14850. The othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 14, read with Government notification of 15-6-1977, the charge itself cannot be framed on the facts alleged in the SCN. The entry in the credit note neutralises the amount earlier debited against the appellant. Therefore, he had no right to receive the said amount. It is not disputed that the amount of commission earned by the appellant remained with Siegfried. The credit note gave the appellant only a right to receive the amount mentioned therein if there is no dispute between the parties in respect of the entries therein. The appellant, by virtue of the credit note, did not become the 'owner or holder of foreign exchange'. In view thereof, the provisions of section 14 were not applicable to the facts as alleged and the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a), 14, 8(1) and 9(1)(a) or any of them cannot be sustained. The impugned order is, therefore, liable to be set aside. 11. The learned Adjudicating Officer has erred in law in treating Process Instrumentation, the sole proprietary concern of Shri Mittal, as a company as defined in the Explanation under section 68. Process Instrumentation is merely the business name under which its sole proprietor Shri Mittal carried on his activities and not any AOP. The penalty imposed on Process Instrumentation is, therefore, liable to be set aside. 12. In the result, the appeal is allowed and the impugned order is set aside as against Process Instrumentation and its proprietor Shri R.P. Mittal. The respondents are directed to refund to the appellant the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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