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TaxTMI 
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2013 (9) TMI 708
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....ry 2008 passed by the Appellate Tribunal for Foreign Exchange (herein after referred to as the Tribunal ) in Appeal Nos.499 to 501 of 2005 dismissing the appeals filed by the appellants and thereby confirming the Adjudication Order No.ADJ/47/AAO/RPR/B/2005 dated 4th May 2005 passed by the Additional Director, Enforcement Directorate, Mumbai, imposing penalty on each of the appellants respectively. 3. All the three Appeals were admitted in terms of the following substantial questions of law. (1) Whether judicial discipline requires the Appellate Tribunal for Foreign Exchange ( Tribunal for short) to unreservedly follow its own Order dated 28th November, 2007 of the same Coordinating Bench in the case of M/s Contessa Commercial Company Pvt. Ltd. Vs. Special Director ( Contessa for short), which is on identical facts and circumstances as the present case and when the entire case against the present Appellant including the issuance of the show cause notice (Memorandum) and the documentary evidence relied upon, is a result of the investigations conducted against Contessa? (2) Whether the Tribunal was duty bound to follow the Order passed by the Customs, Excise & Service Tax Appellate....
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....of the FERA are sought to be saved under Section 49(3) of the Foreign Exchange Management Act, 1999 ( FEMA for short), whether a show cause notice signed on 31.05.2002 and posted thereafter, which came to be received by the appellant on 3.6.2002, can be said to be saved by the aforesaid Section 49(3) of the FERA ? 4. The facts relevant for the purpose of deciding the issues arising in these Appeals may be summarized as under: 4.1 It is the case of the department that during the period between March 1998 and August 1998, one Mr.Dharmesh P. Shah, Appellant of First Appeal No.2401 of 2008 and proprietor of M/s. Vaishal Impex imported 2,96,200 pieces of computer software on CD ROMs under OGL for a total invoice value of US $44,55,500/- at the rate of $15 per piece, according to 16 invoices and connected import documents, which were submitted by M/s.Vaishal Impex to the Customs Authorities. In furtherance of the same, M/s. Vaishal Impex through their clearing agent M/s. C.S.Narendra and Company, Hyderabad, submitted Bills of Entry bearing different numbers dated 25th April 1998, 29th August 1998 and 22nd August 1998 respectively and all of them consisted of CD ROMs imported by M/s.Vai....
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....ed a letter of credit on behalf of the above referred importers in the similar manner like in the case of M/s.Vaishal Impex and the importers had declared the price of the software on the CD ROMs as US $15 per piece. In the case of M/s.Contessa Commercial Company Pvt. Ltd., Kolkata, the declared value before the Indian Customs was found to be on a very higher side than the actual value of the CD ROMs i.e. the value declared by the exporters, M/s.Gulf Software, Dubai before the Dubai Customs. 4.6 According to the department, the actual value of each of the software on the CD ROMs imported by M/s.Contessa Commercial Company Pvt. Ltd., Kolkata, was US $1.11 per piece and not US $15 per piece as declared by the importer and also the software on CD ROMs imported by M/s.Contessa Commercial Company Pvt. Ltd., Kolkata and M/s.Vaishal Impex, Ahmedabad, were reportedly different in description than those to be designated as computer software. It was also found by the department that the CD ROMs were found lacking in interactivity and failed to run on the automatic data processing machine not loaded with an operating system. Accordingly, the department reached to the conclusion that the CD R....
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....dia, under the provisions as contained in Section 8, Clause (3) and Section 8, Clause (4) of the Foreign Exchange Regulation Act, 1973 (herein after referred to as FERA ) read with Section 64, Clause (2) and Section 68, Clause (1) of the Act issued a memorandum dated 31st May 2002 calling upon the appellants to show cause in writing within 10 days from the date of the receipt of the memorandum as to why the adjudication proceedings as contemplated under Section 51 of the Foreign Exchange Regulation Act, 1973 read with Section 49, Clause (3) and (4) of the Foreign Exchange Management Act, 1999 should not be held against them for the aforesaid contravention. 4.12 On receipt of the show cause notice to each of the appellants, individual replies were filed submitting that although the show cause notice is dated 31st May 2002, the same was received by them only on 4th June 2002 which was subsequent to the repeal of FERA. It was submitted that in view of the provisions as contained in Section 49 of the FEMA, the adjudicating authority was bound to take notice of the contravention within the period of two years i.e. from 31st May 2000 to 31st May 2002 and not thereafter. 4.13 The adjudi....
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....t Appeal Nos.2399 and 2400 of 2008 and Mr.Vikram Nankani, learned Senior Counsel appearing with Mr.Hardik P. Modh for the appellants of First Appeal No.2401 of 2008, made the following submissions. 5.1 When the authorities under FERA while issuing notice solely relied upon the custom authorities investigation and when the appellants have been exonerated by the customs authorities, in such circumstances, it was not open for them to take a contrary stand to the one taken by the customs. It has been vehemently submitted that judicial discipline mandates quasi judicial authorities to be consistent in their views and not to take different stand when the question arising for consideration and the facts are similar/identical to the previous case wherein the department has accepted the earlier decisions of the adjudicating authority under FEMA as well as the appellate Tribunal in the case of M/s.Contessa Commercial Company Pvt. Ltd., Adani Exports Limited and its director, Shri Rajesh Adani and has not thought fit to challenge the same. In support of the aforesaid submission, Mr.Trivedi has relied on the following case law. 1. Birla Corporation Ltd. vs. Collector of Central Excise 2005 (....
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....nformatics Center, Government of India, in that regard, in such circumstances, the appellants were justified in requesting the authorities to permit them to cross-examine the concerned officer so as to bring on record what actually weighed with such officer and what was taken into consideration while giving such report, more particularly, when the same is in conflict with the other reports. In support of this submission, Mr.Trivedi placed strong reliance on the following decisions. 1. Commissioner of Income Tax, Guj. vs. Surendra Gulabchand Modi (1983) 140 ITR 571 (Guj). 2. State of Kerala vs. K.T. Shaduli Grocery Dealer (1977) 2 SCC 777. 3. Arya Abhushan Bhandar vs. Union of India 2002 (143) ELT 25 SC. 4. Lakshman Exports Limited vs. Collector of Central Excise 2002 (143) ELT 21 SC. 5. Jha Shipping Agency vs. Union of India 2011 (264) ELT 321 (Cal.) 6. BSES Rajdhani Power Limited v. Sh. Manoj Kumar - 2006 SC 1445 5.4 Mr.Trivedi further submitted that the impugned order travels beyond the scope of the show cause notice dated 31st May 2002 and on this ground alone, the order impugned deserves to be quashed and set aside. According to Mr.Trivedi, the observations made in parag....
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....3rd June 2002, which is beyond the prescribed period. In support of this submission, Mr.Trivedi has placed strong reliance on the following decision. Star India Pvt. Ltd. v. Union of India [2011(264) ELT 353 (Bombay)] 5.6 In such circumstances, referred to above, Mr.Trivedi, the learned Senior Advocate appearing for the appellants submits that the impugned order deserves to be quashed and set aside and the Appeals be allowed accordingly. SUBMISSIONS ON BEHALF OF THE DEPARTMENT:- 6. Mr.Pankaj Champaneri, the learned Assistant Solicitor General of India appearing for the department vehemently opposed these Appeals and submitted that no error, not to speak any error of law, could be said to have been committed by the Tribunal in passing the order impugned. Mr.Champaneri submitted that all the relevant aspects of the matter have been threadbare discussed by both the authorities, namely, the adjudicating authority and the Appellate Tribunal. 6.1 Mr.Champaneri, in reply to the first submission canvassed on behalf of the appellants submitted that it is settled law that it is not binding on the Tribunal to follow its own order as it is always open for the department to correct an erro....
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....turbed and the appeals may be dismissed accordingly. 7. Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question that falls for our consideration in these Appeals is whether the Tribunal committed any error in passing the order impugned. 8. We propose to deal with the last submission of Mr.Trivedi first as regards Section 49, Clause (3) of FEMA because if we come to the conclusion that the adjudicating officer could not have taken notice of the contraventions as alleged against the appellants as the proceedings were time barred, then in such circumstances, we may not have to enter into the merits of the other submissions. 9. To appreciate the rival submissions raised at the bar, we may refer with profit to Section 49 of FEMA which deals with repealed Sub-sections (3) and (4), which are relevant for our purpose, read as thus: "(3) Notwithstanding anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under section 51 of the repealed Act after the expiry of a period of....
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....ideration of the evidence produced before the adjudicating officer, the adjudicating officer is satisfied that the person has committed the contravention, he may, by order in writing, impose such penalty as he thinks fit in accordance with the provisions of section 50: Provided that the notice referred to in sub-rule (1), and the personal hearing referred to in sub-rules (3), (4) and (5) may, at the request of the person concerned, be waived. 11. Section 51 of the FERA 1973 reads as follows: "For the purpose of adjudging under section 50 whether any person has committed a contravention of any of the provisions of this Act (other than those referred to in that section) or of any rule, direction or order made thereunder, the adjudicating officer shall hold an inquiry in the prescribed manner after giving that person a reasonable opportunity for making a representation in the matter and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty as he thinks fit in accordance with the provisions of that section." 12. It deserves to be noted that Section 49, Clause (3) of FEMA uses the words no adjudicating officer shall take not....
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....s alleged to have been committed by such person, indicating the provisions of the Act. Then the person is given an opportunity to produce oral or documentary evidence and on the consideration of the evidence placed before the adjudicating officer suitable orders are passed. The only document that is supplied to the person which contains the materials placed against him as also the contravention, is the show cause notice issued under Rule 3(1). The second notice under Rule 3(3) is a mere intimation of the date of hearing for the further proceedings." After so stating, the Bench proceeded to hold as follows: "Section 51 calls upon the adjudicating officer to hold an enquiry in the prescribed manner. Rule 3 prescribed the manner. If the enquiry is to commence only from Rule 3(3) stage, there could be no statutory basis for the adjudicating officer to issue notice under Rule 3(1) or decide whether or not to accept the cause shown by the person and pass consequential orders, either dropping the proceedings or continuing the proceedings." In S.K.Sinha, Chief Enforcement Officer v. Videocon International Ltd. [2008 (2) SCC 492], Supreme Court held as under: "19. The expression cogniza....
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....condition precedent to the initiation of the proceedings. 37. Order of issuance of process on 3-2-2003 by the court was in pursuance of and consequent to taking cognizance of an offence on 24-5-2002. The High Court, in our view, therefore, was not right in equating taking cognizance with issuance of process and in holding that the complaint was barred by law and criminal proceedings were liable to be quashed. The order passed by the High Court, thus, deserves to be quashed and set aside." 13. We also have to our profit a Division Bench decision of the Delhi High Court rendered in the case of Dr.S.Ramkrishna v. Enforcement Directorate and Others in Letters Patent Appeal No.397 of 2010 decided on 4th October 2010 His Lordship Deepak Mishra, CJ (as His Lordship then was) has dealt with this issue at length. After taking note of decision of the Apex Court in the case of Videocon International Limited (Supra) and Nayana Maricair (supra) His Lordship observed in paragraphs 16 and 17 as under: "16. We have reproduced the aforesaid paragraphs from Videocon International Ltd. (supra) as Mr. Mukund has submitted that the said decision is not applicable to the adjudicatory proceeding as it....
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....sel for the appellant. 23. It is so as the first show-cause notice, which was issued on 28th February, 2010, clearly shows application of mind to the proceeding which is sought to be adjudicated. The entire allegations have been brought on record. Similarly, from the second show-cause notice, it is clear as day that the entire allegations were put to the appellant. There cannot be any dispute over the same. The word enquiry¬ used in Section 51 has its own significance and the enquiry commences from the stage of issue of a notice to show-cause under Rule 3(1) and such an interpretation is in accord with the terms of Section 49(3) of FEMA." 14. The same view has been expressed by a Division Bench of the Bombay High Court in the case of Star India Pvt. Ltd. v. Union of India reported in 2011 (264) ELT 353 (Bombay) with which we are in complete agreement and we propose to follow the dictum as laid in the decisions referred to above. It may not be out of place to state that dissatisfied with the judgment, the petitioner Star India Pvt. Ltd. had also filed a Special Leave to Appeal (Civil ) No.8491 of 2011 against the judgment and order passed by the Division Bench of the Bombay Hi....
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....leged contravention of FERA by fixing a date for the appearance of that person, either personally or through his representative. 18. In the present case, the show cause notice dated 31st May 2002 is the first stage notice. In our opinion, the adjudicating officer can be said to have taken notice of the alleged contravention of FERA on 31st May 2002. The first notice issued under Rule 3, Clause (1) is a show cause notice, which requires the noticee to show cause, why adjudication proceedings should not be initiated for the alleged contravention of FERA. Rule 3, Clause (2) requires that the show cause notice issued under Rule 3, Clause (1) must indicate the nature of the offence allegedly committed under FERA. Unless the adjudicating officer forms a prima facie opinion that the provisions of FERA have been violated, he may not issue a show cause notice calling upon the noticee to show cause why adjudication proceedings should not be held for the alleged contravention of FERA. Since the first notice is the foundation for initiating the adjudication proceedings, the adjudicating officer cannot issue the first notice casually or without forming a prima facie opinion that the provisions....
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....show cause, the adjudicating officer cannot take notice that there is contravention of the provisions of FERA. Such a construction would defeat the very object of initiating adjudication proceedings under FERA and must be avoided. 27. Moreover, if the argument of the petitioners that the adjudicating officer applies his mind to the materials placed before him only after the first notice is issued and the period prescribed in the notice to show cause has expired is accepted, it would mean that the first stage show cause notice can be issued without considering the materials placed before him. When the legislature mandates under Rule 3(2) of the Appeal Rules that the first stage show-cause notice shall indicate the nature of the offence alleged to have been committed by the noticee, it is evident that the adjudicating officer must apply his mind to the materials placed before him and only when he entertains the prima facie belief that there is contravention of the provisions of FERA he is required to issue show cause notice under Rule 3(1) calling upon the noticee to show cause. Thus, the adjudicating officer takes notice of the alleged contravention of FERA and only thereafter issu....
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....for further investigation cannot be accepted. 29. The argument of the petitioners that if the words take notice is not construed to be equivalent to take cognizance, then anomalous situations would arise and result in hostile discrimination is also without any merit. A Magistrate takes cognizance of an offence on perusal of the complaint filed before him, whereas the adjudicating officer takes notice of the alleged offence on perusal of the materials placed by the enforcement officer. Further steps to be taken thereafter in the respective proceedings are entirely different. Failure to take cognizance in the criminal proceedings or failure to take notice in the adjudication proceedings about the alleged contravention of FERA within a period of two years from the commencement of FEMA (i.e. on or before 31/05/2002) would obviously be barred under Section 49(3) of FEMA. Where for the same offence the adjudicating officer takes notice and the Magistrate does not take cognizance within two years from the commencement of FEMA, then, the adjudication proceedings would continue and the criminal proceedings would be barred. In such a case even if there is any anomaly on account of the failu....
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....telligence ( DRI for short) and the Customs authorities carried out investigation with regard to the alleged over valuation and wrong classification of 'Software on CD-ROMs', imported by M/s.Contessa Commercial Co. Pvt. Limited and M/s.Vaishal Impex with the support of the financer i.e. Appellant M/s.Adani Exports Limited and its director Shri Rajesh Adani. 25. Based on the aforesaid investigation, the DRI issued a show cause notice dated 25.1.2001 answerable to the Commissioner of Customs against M/s.Contessa Commercial Co. Pvt. Ltd. and Shri Rajesh Adani. DRI issued another show cause notice dated 24.12.2001 against M/s.Vaishal Impex, M/s.Adani Exports Ltd. and Shri Rajesh Adani. In both the cases, it was alleged that there was a gross mis-declaration of value and description in respect of the imports of the aforesaid goods. 26. The adjudicating authorities under the Customs Act, 1962 confirmed the aforesaid show cause notices vide order dated 29.4.2004 in case of M/s.Contessa and vide order dated 23.3.2004 in case of M/s.Vaishal Impex and others i.e. the appellants herein. 27. The final fact-finding authority in respect of Customs, i.e. CESTAT allowed the appeals filed by M/s....
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..../s.Vaishal Impex, M/s.Adani Exports Limited and Shri Rajesh Adani. In the said notice, the role attributed to the appellants and the observations made against them are reproduced herein under: "AND WHEREAS it further appears from the investigations made by the Officers of DRI and the Customs Authorities in regard to the Software on CD ROMs imported by M/s.Contessa Commercial Co. Pvt. Ltd., Calcutta, during the year 1998 (i.e. the relevant period) from M/s.Gulf Software, Ajman, UAE it has been revealed that, in both cases M/s.Adani Exports Ltd., Ahmedabad have opened L/Cs on behalf of the above mentioned importers, in similar manner and the importers had declared the price of Software on CD ROMS as US$15 per Piece and in the case of M/s.Contessa Commercial Co. Pvt. Ltd., Calcutta, the declared value before Indian Customs was found to be highly inflated than the actual value of CD ROMs i.e. the value declared by the exporter M/s.Gulf Software, Dubai before Dubai Customs; AND WHEREAS by opening irrevocable documentary L/Cs to the extent of US$ 16,50,000/- on account of M/s.Vaishal Impex, Ahmedabad, favouring M/s.Computer Point, Dubai for the aforesaid import of goods in the aforesai....
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....al authority should not take a different stand when a question arising for consideration is set at rest in a previous case and, more particularly, when the department has accepted the earlier decision of the adjudicating authority under FEMA as well as of the Appellate Tribunal in the case of M/s.Contessa Commercial Company Pvt. Ltd., Adani Exports Limited and its Director, Shri Rajesh Adani. The case law on which reliance has been placed by Mr.Trivedi fortifies our view. 34. We also find merit in the submission of Mr.Trivedi that the manner in which the customs authorities are expected to follow the decision of the licensing authorities in the matter of issuance of license, the custom authority's decision in the matter of classification and valuation are also final vis-a-vis FERA authorities, more particularly, when the custom authorities are the statutory authorities empowered to decide the issue of classification and valuation of goods at the time of import as well as export thereof. We are of the opinion that this aspect ought to have been kept in mind by the appellate Tribunal under FEMA. The case law relied upon by Mr.Trivedi in support of this submission fortifies our view.....
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....ple laid down in Hindustan Petroleum Corporation Ltd.(supra), the department cannot be permitted to take a different stand in the present appeals." 35. At this juncture, it will be also profitable to refer to the decision of the Supreme Court in the case of Jayaswals Neco Limited v. Commissioner of Central Excise, Nagpur reported in 2006 (195) ELT 142 (SC), wherein the Supreme Court has laid down a proposition of law that if the department accepted a principle laid down in an earlier case, it should not be permitted to take a contrary stand in a subsequent case. It was further pointed out that the classification of goods adopted in earlier decision must not be slightly disregarded in the subsequent decisions. 36. Thus, we are of the firm opinion that the appeals should succeed on this ground alone. 37. We shall now consider the third submission as regards the violation of the principles of natural justice. 38. A very strong grievance has been redressed on behalf of the appellants that despite making a specific request before the adjudicating officer for cross-examination of the DRI officers, the same was ignored on the ground that the strict rules of evidence are not applicable....
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....tion was one with regard to the burden of proof and contravention of natural justice. The Supreme Court made the following observations in paragraphs 11 and 12, which are as under: "11. The learned counsel for the appellant contended that the burden on the Customs Authorities has not been discharged. He urged that there was no evidence that the watches had not been brought into India lawfully. He urged, secondly, that the impugned order wrongly placed the burden on the appellant, thirdly, that the impugned order was made in contravention of natural justice; and fourthly, that there was no evidence that watches had been imported in contravention of law. 12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show-cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our opi....
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....ave been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case." 3. One of the rules which constitutes a part of the principles of natural justice is the rule of audi alterem partem which requires that no man should be condemned unheard. It is indeed a requirement of the duty to act fairly which lies on all quasi judicial authorities and this duty has been extended also to the authorities holding administrative enquiries involving civil consequences or affecting rights of parties because as pointed out by this Court in A.K. Kraipak and Ors. v. Union of India, "the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice" and justice, in a society which has accepted socialism as its article of faith in the Constitution, is dispensed not only by judicial or quasi judicial authorities but also by authorities discharging administrative functions. This rule which requires an opportunity to be heard to be given to a person likely to be affected by a decision is also, like the genus of which it is a species, not an inflexibl....
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....n precedent to the assumption of jurisdiction by the Sales Tax Officer to make assessment to the best of his judgment. Now, where no return has been submitted by the assessee, one of the two conditions necessary for the applicability of section 17, subsection (3) being satisfied, the Sales Tax Officer can, after making such inquiry as he may consider necessary and after taking into account all relevant materials gathered by him, proceed to make the best judgment assessment and in such a case, he would be bound under the proviso to give a reasonable opportunity of being heard to the assessee. But in the other case, where a return has been submitted by the assessee, the Sales Tax Officer would first have to satisfy himself that the return is incorrect or incomplete before he can proceed to make the best judgment assessment. The decision making process in such a case would really be in two stages, though the inquiry may be continuous and uninterrupted: the first stage would be the reaching of satisfaction by the Sales Tax Officer that the return is incorrect or incomplete and the second stage would be the making of the best judgment assessment. The first part of the proviso which requ....
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....unity to prove the correctness or completeness of the return would, therefore, necessarily carry with it the right to examine witnesses and that would include equally the right to Cross-examine witnesses examined by the Sales Tax Officer. Here, in the present case, the return filed by the assessee appeared to the Sales Tax Officer to be incorrect or incomplete because certain sales appearing in the books of Hazi Usmankutty and other wholesale dealers were not shown in the book's of account of the assessee. The Sales Tax Officer relied on the evidence furnished by the entries in the books of account of Hazi Usmankutty and other wholesale dealers for the purpose of coming to the conclusion that the return filed by the assessee was incorrect or incomplete. Placed in these circumstances, the assessee could prove the correctness and completeness of his return only by showing that the entries in the books of account of Hazi Usmankutty and other wholesale dealers were false, bogus or manipulated and that the return submitted by the assessee should not be disbelieved on the basis of such entries, and this obviously, the assessee could not do, unless he was given an opportunity of cross-exa....
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.... proving the correctness or completeness of such return. In view of this provision it can hardly be argued with any show of force that if the assessee desires the wholesale dealers whose accounts are used against him to be cross-examined in order to prove that his return is not incorrect or incomplete he should not be conceded this opportunity. Apart from anything else, the second part of the proviso itself confers this specific right on the asses- see. It is difficult to conceive as to how the assessees would be able to disprove the correctness of the accounts of Haji P.K. Usmankutty or the other wholesale dealers, unless he is given a chance to cross-examine them with respect to the credibility of the accounts maintained by them. It is quite possible that the wholesale dealers may have mentioned certain transactions in their books of account either to embarrass the assessees or due to animus or business rivalry or such other reasons which can only be established when the persons who are responsible for keeping the accounts are brought before the authorities and allowed to be cross-examined by the assessees. This does not mean that the assessing authority is bound to examine the w....
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....s-examine a witness. In the facts of that particular case, the Supreme Court made the following observations in paragraph 3 as under: "3. It is true that the petitioner had confessed that he purchased the gold and had brought it. He admitted that he purchased the gold and converted it as a Kara. In this situation, bringing the gold without permission of the authority is in contravention of the Customs Duty Act and also FERA. When the petitioner seeks for cross-examination of the witnesses who have said that the recovery was made from the petitioner, necessarily an opportunity requires to be given for the cross-examination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the jewellery, whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is enti....
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....lic interest may be indicative of the absence of an obligation so to act. Where a discretionary power to encroach upon individual rights is exercised, factors to be taken into account in deciding what fairness requires in the exercise of the power include the nature of the interests to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions, if any, involved. The content of the duty to act fairly will normally be very limited where the authority is in the course of exercising a function not culminating in a binding decision, but that may not be the case if the wording of the grant of powers or the context indicates that a fair hearing ought to be extended to persons likely to be prejudicially affected by an investigation or recommendation." 45.1 It has further been observed therein: "94. Audi alteram partem. The rule that no man shall be condemned unless he has been given prior notice of the allegations against him and a fair opportunity to be heard is a cardinal principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rul....
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....All the 112 CDs, duly sealed, are returned herewith. Yours faithfully, Sd/- (S.K.Marwaha) "ELECTRONICS AND COMPUTER SOFTWARE EXPORT PROMOTION COUNCIL (Sponsored by the Ministry of Commerce, Govt. of India) ESC/EDP/98/22710 July 14, 1998 The Assistant Commissioner of Customs ICD-Faridabad. SUB:CLARIFICATION ON CONTENTS OF CD ROMS REF: Your letter No.VIII/ICD(FBD)6/IMP/26/98/408 dated 07.07.98. Dear Sir, In continuation to our letter No.ESC/EDP/98/22691 dated 13.07.98 on the above cited subject, it is to inform that all the 23 samples with the following titles of the CD-ROM forwarded by you vide your above referred letter have been examined in the Council and the contents of all the 23 titles (including the 16 titles already reported to you vide our letter No.ESC/EDP/98/22691 dated 13.07.98) are found to be interactive in functionality and qualify under the category of Computer Software. Sr. No. TITLE NAMES 1. 1300 New Cities Mega Metros 2. Bill Board Music Guide 3. Compaign Each Germany 4. Crazy Pool 5. Dinosour Safari 6. Hello Kitty 7. Image Esctasy 8. Pipe Mania 9. Quantam Gate 10. Shadow President 11. Solid Gold 12. Speed Way 13. The Madness of Roland 14....
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....respect of the captioned subject. We have gone through the details of the 30 CDs and the observation is as below: 1. All 30 CDs can be run on a computer (an automatic data processing machine) containing the operating system of Windows. The contents brief as noted is Appended at Annexure-I. 2. All 30 CDs on its backside contains the remark Runs on Windows 95 & Windows 3.1 . Windows 95 & Windows 3.1 are operating systems. 3. All 30 CDs on its backside gives the system requirements which contains Machintosh:System 7.0 or Later where Machintosh System 7.0 is an operating system. 4. Out of 30 CDs, only one CD could run on VCD Player (which is generally used automatic data processing machine not loaded with operating systems like Windows 95, Windows 97, UNIX, etc.). The content brief as noted is at Annexure-II. 5. In the event if any other Automatic Data Processing Machine not loaded with an Operating System is provided by the Importer/User of the CD that run the said 30 CDs the same can be counter-verified. Your faithfully, For Software Technology Park, Gandhinagar Sd/- Ajay Sharma Director" 49. Thus, when there is an apparent conflict between the two sets of opinion, in such....
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....d, for ultimately, the paramount consideration must be to avoid multiplicity of proceedings, to avoid necessary litigations and to save the parties from unnecessary costs required to be incurred in connection with such proceedings, if there was no prejudice to any side. These considerations have not been taken into account by the Tribunal. It has not even shown an awareness of this vital dimension of the matter. The request has been turned down merely on the ground that the matter was old. The matter would have continued to remain old even if the parties were obliged to carry the matter initially to the High Court and, subsequently, to the Supreme Court, and the matter would have remained old and indisposed of till the Supreme Court finally decided the crucial question on the decision whereof one way or the other, the matter turned on merits. 51. We may also quote with profit the observations made by a Division Bench of the Kolkata High Court in the case of Jha Shipping Agency v. Union of India reported in 2011 (264) ELT 32 (Calcutta) on which strong reliance has been placed by Mr.Trivedi and with which we are in complete agreement. In paragraph 3, the Bench made the following obs....
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....ugned order travels beyond the show cause notice dated 31st May 2002 and the observations made by the Tribunal in its order completely makes out a new case against the appellants. 54. It is settled law that a party to whom a show cause notice of this kind is issued must be made aware of the allegations against it. As observed by the Supreme Court in Kaur Singh v. Collector of Central Excise, New Delhi reported in 1997 (94) ELT 289 (SC), that this is a requirement of natural justice. Unless the party concerned is put to such notice, he has no opportunity to meet the case against him. Which ground is alleged against the party must be made known to him, and there is no scope for assuming that the ground is implicit in the issuance of show cause notice. We have observed that many of the findings recorded by the Tribunal are much beyond the case set up by the department in the show cause notice. For example, the show cause notice does not set out any particulars in respect of fraud or collusion or conspiracy. We have noticed that in paragraph 4 of the impugned order, it has been observed that the case of M/s.Vaishal Impex was not an isolated case but it was a part of conspiracy played ....