2008 (6) TMI 644 - AT - FEMA

Tribunal Overturns Penalty Due to Procedural Lapses, Remands for Fair Reconsideration in Export Proceeds Case.

The appellate tribunal quashed the Adjudication Order imposing a penalty of Rs. 5,00,000 on the appellant for contravening FERA and FEMA provisions ... - Issues:Appeal against Adjudication Order imposing penalty for contravention of FERA and FEMA provisions regarding outstanding export proceeds. Failure to recover export proceeds, lack of reasonable efforts, and imposition of penalty challenged. Non-consideration of appellant's reply to Show Cause Notice, delay in issuing notice, and lack of detailed discussion on efforts made by appellant raised as grounds for appeal. Allegation of inordinate delay in passing orders and violation of principles of natural justice highlighted.Analysis:The judgment pertains to an appeal against an Adjudication Order imposing a penalty on an appellant company for contravention of provisions under FERA and FEMA related to outstanding export proceeds. The company failed to recover export proceeds amounting to Rs. 44,41,098, leading to the imposition of a penalty of Rs. 5,00,000. The appellant challenged the order, citing non-recovery reasons and efforts made, which were allegedly not adequately considered by the Adjudicating Officer. The appellant's reply to the Show Cause Notice was claimed to be disregarded, and the delay in issuing notices and passing orders was highlighted as a violation of natural justice principles.The appellant argued that the Adjudicating Officer failed to consider the detailed film-wise explanations provided by the company regarding efforts made to recover outstanding dues. It was contended that the delay of over 2 years in passing the impugned order invalidated it, as the appellant was not given a fair opportunity to present their case effectively. The appellant's representative emphasized that the order was passed ex-parte without proper notice and that the service of notices was inadequate, undermining the principles of natural justice.The judgment also referenced the legal principle that inordinate delays in passing orders after hearings can vitiate judgments, citing the Supreme Court's observations in Anil Rai v. State of Bihar. The Court emphasized the importance of timely adjudication to uphold the parties' rights conferred by the Constitution. Consequently, the Adjudicating Authority's order was deemed liable to be quashed, and the matter was remanded for fresh consideration, stressing the need for a detailed reply from the appellant and a fair hearing to ensure public interest and the appellant's rights were protected.In conclusion, the judgment set aside the impugned order, remanding the matter back to the Adjudicating Officer for reconsideration. The Adjudicating Officer was directed to provide a full opportunity for both parties to present their case and resolve the matter promptly, preferably within six months from the first appearance before him. The judgment aimed to uphold the principles of natural justice and ensure a fair hearing in the adjudication process.