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Aggrieved by the dismissal of the appeals as above, further appeals were filed to the Appellate Tribunal for Foreign Exchange, New Delhi by all the appellants herein.
The appeals were finally disposed off by the Appellate Tribunal by two separate similar orders dated 6. The Special Director Appeal has brought out certain issues in paragraph 10 of the impugned order dated Though learned counsel Shri Balgopal has vehemently challenged the remand made by Special Director Appeals FEMA but we do not see any reason not to permit Adjudicating Authority to reconsider the matter when issues outlined in para 10 of the impugned orders are quite relevant to be considered.
Therefore, we feel that the impugned orders are correctly passed and required to sustained. The Adjudicating Authority may decide afresh after conducting adjudication proceedings in the manner described in para 10 of the impugned orders. Therefore, these appeals are liable to be dismissed having no merits. An order is passed accordingly. Aggrieved against the above orders passed by the Appellate Tribunal, the appellants filed these Civil Miscellaneous Appeals before this Court.
According to the appellants, the order of the Special Director in paragraph 10 has nothing to do with the merit of the case which has already been decided by the Authority against the appellants. All that the Special Director Appeals indicated was that further enquiry at the level of Adjudicating Authority was required to be done on certain aspects. In appeals, it was contended that since the Special Director Appeals has confirmed the penalty imposed and dismissed the appeals, the appellants are entitled to be heard on merits as against the original adjudication orders and the order in appeals.
The Appellate Tribunal failed to exercise its jurisdiction as the final arbiter on facts. The appeals before this court have been filed challenging the entire proceedings starting from the Adjudication proceedings, whereas, the Appellate Tribunal summarily dismissed the appeals in terms of paragraph 10 of the order of the Special Director Appeals without going into the merits of the appellants' case.
Learned counsel for the appellants contended that the directions given in paragraph 10 as above have nothing to do with the earlier adjudication order in which penalty has been imposed on the appellants and confirmed by the Special Director Appeals. Therefore, the dismissal of the appeals by the Appellate Tribunal without going into the entire issue raised in appeals has caused prejudice and is a violation on principles of natural justice, besides, being arbitrary.
On this premise, the appeals are canvassed before this court. The other plea taken by the counsel for the respondent is that the appeals are not maintainable as the proceedings were initiated at Calcutta. This plea is, however, not canvassed seriously when the respondent's counsel attention was drawn to the address of the appellant's corporate office at Chennai. The place of usual course of business of the appellant is at Chennai is not disputed and the action is taken at one branch.
Further, the Directors against whom action was taken, ordinarily reside and conduct business at Chennai. The Original order refers to the Chennai address and the same is the case of the order of the Special Director Appeals. Therefore, the said contention does not require any further consideration.
On this premise, the respondent sought for dismissing of the appeals stating that the Adjudicating Authority should decide the matters afresh. As far as factual issue is concerned, though certain plea has been raised by the learned counsel for the appellant on merit, the counsel for respondent stated that since the matters were remanded for adjudication afresh, it need not be dealt upon and will affect one or other party.
No other point was canvassed by the respondent. Having considered the rival submissions, the following factors arise for consideration. Admittedly, there was an enquiry, search, seizure of records and recording of statements. A memorandum of show-cause was issued which culminated in passing of the adjudicating order imposing penalty as set out earlier.
Such order has been confirmed by the Special Director Appeals. In the order in appeal confirming the original order of the Adjudicating Authority as has been extracted above, a further direction has been issued in paragraph 10 by the Special Director Appeals. This direction is, besides, the order confirming the order of the Adjudicating Authority and the penalty imposed by him. It is left to the Adjudicating Authority to decide as to what he will do thereafter.
The Appellate Tribunal has not heard the appeals on merits. The contention in appeals is on the ground of violation or alleged misuse of the scheme while releasing of Foreign Exchange and that has to be gone into on merits based on statements, records, etc.
If the order of remand is accepted as contended, then the entire adjudicating order should have been set aside including the penalty, whereas in this case in paragraph 9. Therefore, it is clear that the order of the Adjudicating Authority was confirmed. There cannot be an order confirming the adjudication order and another order remanding the case for fresh consideration.
Both cannot stand face to face. If further investigation is required, the Appellate Authority should have allowed the appeals and remanded the matters for fresh adjudication. The further direction in paragraph 10 would be relevant at that point of time. Unfortunately, this was not done. The order in adjudication was confirmed. This is a misreading of the order of the Special Director. In paragraph 9 of the Special Director's order, it has been clearly stated that the order of the Adjudicating Authority imposing penalty has been confirmed in appeals.
In terms of para 10 of the Special Director Appeals , there is a direction to make further enquiries against named persons other than appellants, who are the recipients of the Foreign Exchange.
It is to take action against them for violation of provisions of the FEMA. The further direction is with regard to unexplained and unaccounted payment for purchase of the foreign exchange requiring reference to the income tax authorities. It is, therefore, clear that the further direction in para 10 of the Special Director's order is not against the present appellants. Therefore, the case of the appellants needs to be decided on its own facts.
It is not stated by the respondent that the Department had pleaded before the Appellate Tribunal that there was no adjudication order in the eye of law in view of the order of the Special Director Appeals. It is in the counter-affidavit which is not contemplated in appeal that a stand is taken that there is no order in the eye of law and therefore, the appeals are premature.
The case of the Department cannot be improved by counter-affidavit. Since the Appellate Tribunal is the final authority on fact, it has to necessarily decide the matter on merits including the points raised in appeals before it. This court has no hesitation to come to the conclusion that the appeals have been decided without considering the merits of the case of the appellants, as the order of the Special Director Appeals confirms the order of the Adjudicating Authority imposing the penalty holding that the appellants have contravened the provisions of the Foreign Exchange Management Act.
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In exercise of powers conferred on me under Section 13 1 of the Foreign Exchange Management Act, , I impose on them the following penalties to meet the ends of justice:.
Image available on request. The further direction is with regard to unexplained and unaccounted payment for purchase of the foreign exchange requiring reference to the income tax authorities.