9911796707
TMI Blog2013 (10) TMI 1585X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this matter on 11.12.2003 by way of imposing a penalty of Rs. 65,000/- against the appellant. The Tribunal vide its order, dated 31.09.2007 quashed the aforesaid order of the Adjudicating Authority remanded the matter back to the Adjudicating Authority. The Adjudicating Authority vide its order, dated 25.05.2010 passed the order again holding the appellant guilty and enhanced the penalty amount from Rs. 65,000/- (Rupees Sixty five thousand only) to Rs. 1,50,000/- (Rupees One lakh fifty thousand only). An amount of Rs. 30,000/- (Rupees Thirty thousand only) was deposited by the appellant as pre-deposit of penalty amount in compliance of the orders of the Tribunal, dated 27.08.2010. 2.As per Adjudicating Authority Order No. SDE/BK/111/04/2010 dated 25.05.2010, a penalty of Rs. 14,00,000/- (Rupees Fourteen lakhs only) was imposed on M/s Multitech International Ltd. Company (Noticee No. 1), U/S 50 of FERA, 1973 a penalty of Rs. 1,50,000/- (Rupees One lakh fifty thousand only) on each of the (Noticee Nos.9, 10, 11, 25, 26, 27, 28 29) was imposed U/S 50 of FERA,1973. However, the charges were dropped by the Adjudicating Authority against (Noticee Nos. 2, 3, 4, 5, 6, 7, 8, 12, 14, 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal on 7th October, 2010. However, the Hon'ble Delhi High Court Vide CRL.A. 52/2011 Crl.M.A.491/2011, CRL.A.53/2011 Crl.M.A.493/2011, CRL.A.59/2011 Crl.M.A.561/2011, decided on 6th July, 2012, had set aside the Order of the Appellate Tribunal for Foreign Exchange Tribunal, dated 7th October, 2010 pertaining to Appeal Nos.166,167 168 of 2010 and also the order dated 25th May, 2010 of Special Director of Enforcement qua the Appellants i.e. Shri Parag Dalmia (Noticee No. 25), Shri H.S. Rustagi (Noticee No. 13) Shri Jaihari Dalmia (Noticee No. 11). Since the contravention took place without the knowledge of the appellant Shri Sanjay Dalmia (Noticee No. 10) so, he was not under an obligation to prove that he exercised all diligence to prevent such contravention. The burden was on the respondent to prove this fact which has not been discharged. The Adjudicating Authority has committed grave error of law by holding the appellant again guilty as the Adjudicating Authority has misread mis-interpreted the provisions of Section 68 of the Foreign Exchange Regulating Act, 1973. 6. Ld. Counsel for the appellant relied upon a catena of authorities titled as below: (1) S.M.S. Pharmaceuticals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t find mention. As regards Noticee No.10, I find that Noticee No.10 Shri Sanjay Dalmia submitted his resignation as Director vide letter dated 20.6.1987. This fact also finds mention at page-5 of the Annual Report for the year 1986-87 where it is stated that the company has received resignation letter dated 20.6.1987 from Shri Sanjay Dalmia i.e. Noticee No.10 from Directorship of the company. As per records, the impugned remittances was effected by Noticee no. 1 on 28.4.1987, when Noticee No.10 was a director in Noticee No. 1, thus he was aware of the impugned remittance and statutory compliance of filing of Exchange Control Copy of the Bill of Entry in question. Moreover, it is Shri Sanjay Dalmia who had submitted letter dated 27.9.2002 of Canara Bank before the previous Adjudicating Authority to show that the Bill of Entry relating to remittance of UK Pound 9568900 was not outstanding. Shri Sanjay Dalmia was therefore, well versed with the working of the company. He has failed to give any evidence to show that he had no knowledge and had exercised all due diligence to prevent such contravention. I therefore, hold him guilty of aforesaid contravention in terms of Section 68(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Foreign Exchange Tribunal, dated 7th October, 2010 pertaining to Appeal Nos.166, 167 168 of 2010 and also the Adjudicating Order No. SDE/BK/111/04/2010 dated 25th May, 2010 of Special Director of Enforcement qua the Appellants i.e Shri Parag Dalmia (Noticee No.25), Shri H.S. Rustagi (Noticee No.13) Shri Jaihari Dalmia (Noticee No.11). The Hon'ble Delhi High Court vide CRL.A.52/2011 Crl.M.A.491/2011, CRL.A.53/2011 Crl.M.A.493/2011 CRL.A.59/2011 Crl.M.A.561/2011, decided on 6th July, 2012, observed as under in paras no.13 18 to 20: 13. Thus, the contention of learned Additional Solicitor General that the opportunity notice given to the appellants clearly stated that they were in charge and responsible for day-to-day functioning does not hold any ground. Initial burden is cast on the prosecution to prove that the concerned director is responsible and in charge of the day-to-day functioning wherever the burden shifts to the accused to disprove the same. In the present case, neither in the order of the Special Director of Enforcement nor of the Appellate Tribunal for Foreign Exchange, the burden has been discharged by the prosecution and there is no finding that the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
