TaxTMI 
TaxTMI 
2015 (3) TMI 1165
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....erations and the same is illegal, arbitrary and unsustainable on facts and law. The impugned order has incorrectly held that as a result of non-realization of export proceeds, the applicant/appellant had contravened the provisions of Sections 7 & 8 of FEMA, 1999 read with Foreign Exchange Management (Export of Goods and Services) Regulations, 2000. It has been contended that significant developments have taken place after the filing of the appeal which are relevant and necessary to be placed on records. Therefore, the proposed amendment is essential. 2. Through the proposed amendment the details of incorporation of the company and details of agreement are proposed to be added. It has been contended that the appellant pursued with GIT to realize the export proceeds that could not be realized and the appellant realized all the export proceeds that were outstanding as shown in the show cause notice. Copies of FIRC certificates have been annexed as Annexure A-10. It has also been contended that RBI was requested to grant ex post facto approval for realizing the export proceeds and the RBI has granted approval to the appellant vide its letter dated 2-1-2013. The details of which....
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....plication is to ask the Tribunal to examine and weigh evidence submitted, regarding alleged realization which is beyond the scope of Section 19 and Section 28. It has also been contended that by introduction of para "R" appellant proposes to challenge the jurisdiction of the Special Director while in para "S" the appellant raises the issue of limitation. The proposed amendment for para 'T' to 'X' are beyond the scopes of Foreign Exchange Management (Export of Goods and Services) Regulation, 2000 read with order 6 of Rule 17. It has also been pleaded that provision of Rule 15 of regulation clearly state that omission of the RBI to give direction shall not have the effect of absolving the person committing the contravention from the consequences thereof. Therefore, the impugned order is correct. It has also been contended that the appellant has failed to take necessary approval during the course of investigation and prior to passing of the impugned order. Subsequent regularization letters only regularize the export proceeds brought into the country belatedly but in no way this absolve the appellant of the contravention of Sections 7 & 8 read with Regulation 8, 9 and 13 and Section 42....
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....ve also been denied reiterating the contentions of the applicant. It is stated that the matter for writing off was pending before the RBI and the impugned order could not have been passed by the Special Director. The contentions of paragraph 12 have also been denied. In reply to paragraph 13 of the objection it has been stated that the reliance placed on the applicability of the Section 19 FEMA which is misplaced as no statutory period is prescribed either under the FEMA or rules to bring the additional or subsequent information on record. The contentions of paragraphs 14 and 15 of the objection have also been refuted reiterating that the objection have not been authenticated by the respondent and no affidavit on behalf of the respondent confirming the authorization has been filed. 6. We have heard Ms. Natasha Garg advocate on behalf of the appellants and Mr. M.R. Venkatesh, Chartered Accountant/Presenting Officer assisted by Ms. Natasha Sarkar, Legal Consultant and have also carefully perused the record. 7. It has been contended by ld. counsel for the appellant that to bring subsequent developments which have taken place after the institution of the appeal, the app....
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....eral Traders - (1975) 1 Supreme Court Cases 770 in which it has been held that the procedure is handmade and not a mistress of the judicial process. If a fact comes to the Court and has the fundamental impact on the right to relief or the manner of moulding and is brought diligently to the notice of the Tribunal, the Tribunal can not blink at it or be blind to efforts or render inept the desired remedy. 11. Reliance has also been placed on Abnash Kaur v. Avinash Nayyar in CM(M) 269 of 1973, decided on 5-4-1974 by Hon'ble Delhi High Court wherein principles of allowing the amendment application have been laid down. Lastly, it has been submitted that the application has been made in good faith and the appellant has come with clean hands and his bona fides cannot be doubted. Therefore, the application deserves to be allowed. 12. Ld. Presenting Officer/CA has vehemently opposed the application and has contended that adequate opportunity was afforded to the appellant to bring on record the relevant details and at the time of disposal of the adjudication proceedings the Adjudicating Officer has bonafidely decided the case on the basis of available evidence in a most fair,....
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....ant as well as ld. Presenting Officer/CA. 15. It is true that Section 28 FEMA, 1999 which prescribes the procedure and powers of the Appellate Tribunal and Special Director (Appeals) does not specifically mention under sub-section (2) power to allow 'amendment'. Further it has been provided under sub-section (1) of Section 28 that the Appellate Tribunal and the Special Director (Appeals) shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and subject to other provisions of this Act. The Appellate Tribunal and the Special Director (Appeals) shall have powers to regulate its own procedure. 16. In Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others in para 15 it has been emphasized that the object of the amendment is that the Courts should try cases on merits that come before them and should consequently allow all the amendments that may be necessary for determining the controversy between the parties, provided it does not cause injustice or prejudice to the other side. In para 18 of the said judgment relied upon by the ld. counsel for the appellant it has been observed by Hon....
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....the passing of Adjudication Order and the institution of appeal and write off allowed by R.B.I. 20. The effect of realization of the export proceedings subsequently to the passing of the Adjudication Order will be seen at the time of final disposal of the appeal. This in our view is not an appropriate stage to consider the merits of the arguments that since, prima facie a technical violation is made out the amendment application should be rejected. In Pasupuleti Venkateswarlu's case the Hon'ble Supreme Court has gone to the extent of observing that equity justifies bending of the rules of procedure where no specific provision or fairplay is violated. 21. As far as, the judgment of the Hon'ble Supreme Court in WP (Cri.) 57/2014 Subrata Roy Sahara v. Union of India is concerned the question involved before the Hon'ble Apex Court was the application of Section 51 and allied provisions of CPC in proceedings under SEBI Act and the Hon'ble Supreme Court has observed in para 68 of the judgment that the procedure contemplated under Section 51 cannot be applied under SEBI Act. We are of the view that in the instant appeal the question of permissibility to amend pleadings....