TaxTMI 
TaxTMI 
2018 (3) TMI 1136
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....tice. 2. By this common order, we propose to decide the above referred two appeals between the parties. (i) Appeal no. 88/2017 was filed against the order dt. 15.11.2017 passed by adjudicating authority where by the application for recalling of witness Mr. Ckokshi whose cross examination was already conducted on 20/09/2017 was rejected. (ii) Appeal no. 87/2017 was filed against the order dt. 30/10/2017 passed by adjudicating authority whereby the application for cross examination of two witness was dismissed. 3. My extreme brother who is learned Member has handed over the draft order on 16.02.2017 through steno. Having gone through the draft it appears that upto para 15, the learned Member has mentioned the facts and written submissions filed by both parties. In the final paras 16 to 18 of this order, the learned member, held that the appeal is not maintainable due to main reason that it would not prudent for this tribunal to advise/direct/instruct the Adjudicating Authority to follow a specific or particular course of action otherwise it would amount to interference in its functioning. I have a great respect for him, however in view of facts peculiar and le....
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....0th August 2012 of Mr. D. K. Sinha (Assistant Director). While issuance of such shares it was required that the valuation be done in line with the applicable provisions of the Act; being Regulation 5 (1) of the Foreign Exchange Management, (Transfer or Issue of Security by a Person Resident Outside India), Regulations 2000. 10. The independent chartered accountant's report dated 28th February 2009, was obtained about the valuation of the shares "issued" to the non- resident. The case of the appellants is that they have issued such shares at a price of Rs. 10/- per share based on an independent Chartered Accountant's, (R.M. Ajgaonkar& Company. It is the case of the appellant that the said report dated 28th February 2009, was issued in consonance with the applicable FEMA Regulations and particularly Regulation 5 (1) of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations 2000, read with Schedule I thereof. The said report dated 28th February 2009, has inter alia also been accepted by the Appellant's authorized dealer viz; Citibank N.A. at the time of filing of Form FC-GPR pursuant to "issuance" of the shares ....
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....he cross examination of Mr. MitilChokshi had remained incomplete. It is submitted that, other than the word 'concluded' as appearing in the said transcript, there is no Order Sheet and/or Roznama of 20th September 2017, which conclusively establishes that cross-examination was completed on 20th September 2017. 18. It is submitted by the appellant that the cross-examination had inter alia remained incomplete on 20th September 2017, by reason of the fact that the witness, Mr. MitilChokshi throughout the process took long intervals when responding to any question, during which interruptions/intervals, Mr. MitilChokshi took time to consult his lawyers, (Advocate Ms. DivyaBahl), before responding to the question the right and further cross-examine Mr. MitilChokshi and be granted to the Appellant. 19. It is also submitted on behalf of the appellant that there have been no dilatory tactics adopted by the Appellant inasmuch as 20th September 2017 was the first day of hearing and the aforementioned situation arose prior to the second date of hearing. The show cause notice is dated 24th March 2017. Pursuant to the request for inspection, documents were furnished on 14th August ....
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....on was made available). in also paragraph 5 of the Impugned Order dated 15th November 2017 which paraphrases some of the submissions in context of these discrepancies as made to the Adjudicating Authority at the time of hearing on 15th November 2017 as under: "5. ..... There are discrepancies noticed on various assumptions reflected in the work sheet vis-à-vis the discussion in the Opinion which include the prize money, revenue growth, capitalization rate, etc. The Ld. Counsel also submitted that he wanted to know about the terms of engagement of C&C and the scope of work mandated to them by the ED. These questions, he wanted to raise because the letter of engagement given by ED showed the appointment of C&C was only for giving their opinion on the valuation of KRSPL shares 'Transferred', whereas, the Opinion provided by C&C, was in respect of valuation of KRSPL shares "Issued"." 24. With reference to paragraph 15 (c) of the said Application dated 14th November 2017; refers to fair value arrived at by PECV method after applying a 15% capitalization rate in the sensitivity analysis to compute the fair value of shares; the work sheets to the said Opinion, w....
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....ctober, 2017 inter alia informing than, an appeal had been filed by the appellant being Appeal No. 83 of 2017 challenging the order dated T-4/01-B/SDE(VA)/WR/2017/2418 before the Appellate Tribunal for Foreign Exchange Management Act, 1999 and appeal being no. 84 of 2017 challenging the said order. 31. By the said letter the learned Special Director of Enforcement was also requested that, prior to proceeding any further with the hearing in the matter, the complainant Mrs. V. Kalyani and the Investigating Officer Mr. D.K. Sinha should also be produced for the purpose of cross-examination. 32. The Special Director of Enforcement; in the record of the hearing held on 30th October, 2017, reflected the request for cross-examination of the complainant Mrs. V. Kalyani and Assistant Director Mr. D.K. Sinha, signator to the ED Investigation Report. 33. In view of above, the appellant sought further time for hearing on the ground that the appeal No. 83 of 2017 and appeal No. 84 of 2017 were listed for hearing before the Appellate Tribunal on 13.11.2017, thus, the ld. Special Director adjourned the hearing to 15.11.2017. 34. As far as this contention of the appellant that cross wa....
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....f of respondent. The first objection of Mr. Rajiv Awasthi appearing on behalf of respondent is that the appeal is not maintainable under Foreign Exchange Management Act, 1999. The appeal can only be filed before this Tribunal once the Adjudicating Authority passes the final order imposing penalty as contemplated under Section 19(1). The proceedings before the Adjudicating Authority are in the nature of enquiry as per under Section 16 of the Act. Thus, the impugned order cannot be termed as an order. Therefore the appeal is not maintainable. 39. Mr. Awasthi submits that the Hon'ble Supreme Court in its various pronouncements have clearly held that Adjudicating Authority as well as Tribunals are creation of statutes and therefore, has no power to interpret or exceeds its jurisdiction and they are strictly bound by the provisions of the Act. 40. He referred the decision of the following decisions:- (i) Hon'ble Supreme Court in Union of India Vs. Devki Nandan Aggarwal 1992 Supp.(1) SCC -323 has held:- "..... It is not the duty of the court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and....
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....any litigation at interlocutory stage. Attention of the senior counsel for the appellants is also invited to National Council for Cement & Building Materials Vs. State of Haryana (1996) 3 SCC 206 noticing the appalling situation created due to challenge to the decision on preliminary issues in the High Court and during which time the reference is stayed and lies dormant and laying down that the High Court should refuse to intervene in the proceedings before the Tribunals at an interlocutory stage. 42. In nut- shell in his first submission is that the appellant must wait for final outcome of the Adjudication proceedings and unless the final order is passed, the present appeal is not maintainable and hence the same is liable to be dismissed. 43. On plain reading of section 19 and section 35 it is apparent that the words "an order" contained in Section 19(1) is to be given a wide and liberal interpretation to mean any order which effects valuable rights of a person aggrieved or the Central government. It is not limited to a final order passed under Section 13 read with Section 16. 44. The contradiction between the words "any person appealing against the order of the adjudicat....
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....his Court on the basis of an interpretative exercise. 20. Under Section 35 of FEMA, the legislature has conferred a right of appeal to a person aggrieved from "any" "order" or "decision" of the Appellate Tribunal. Of course such appeal will have to be on a question of law. In this context the word "any" would mean "all". 24. In Black's Law Dictionary the word "any" has been explained as having a "diversity of meaning" and may be "employed to indicate 'all' and 'every' as well as 'some' or 'one' and its meaning in a given statute depends upon the context and subject-matter of statute". The aforesaid meaning given to the word "any" has been accepted by this Court in LDA v. M.K. Gupta. 27. In a case where right of appeal is limited only from a final order or judgment and not from interlocutory order, the statute creating such right makes it clear [see Section 19 of the Family Courts Act, 1984] ........ 28. Similarly, under Section 104 of the Code of Civil Procedure read with Order 43 Rule 1 thereof, it has been indicated from which interlocutory order an appeal will lie. But it has been made clear that no second a....
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....Section 17(2) of the Act and the words "an order" occurring in Section 20(1) of the Act includes every order passed by the Tribunal under the Act which affects the rights or liabilities of the parties, or these relate to only final order passed by the Tribunal. In the context of Sections 17(2) and 20(1) of the Act, I am of the opinion that the words "any order made, or deemed to have been made, by a Tribunal under this Act" occurring in Section 17(2) of the Act and the words "an order made, or deemed to have been made by a Tribunal under this Act" occurring in Section 20(1) relate to every order of the Tribunal made under the Act which affects the rights or liabilities of the parties. Obviously, any interim order passed under Section 19(6) of the Act by the Tribunal, if it affects the rights or liabilities of any party, will be subject to appeal under Section 20(1) of the Act." [Emphasis Added]. 50. It is pertinent to mention that the ED"s submissions made in the present Appeals, have been rejected by a three-Judge Bench (headed by Justice Deepak Misra) of the Hon'ble Madhya Pradesh High Court in PCC Construction Co. vs. DRT; 2003 (1) MPJR 260. The Hon'ble High Court held: ....
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....e terms "an order" and "any order" in the said judgement." In view of our premised reasons, we pigeon-hole and itemise our conclusions as under: (a) An appeal against an order which substantially affects the rights or liabilities of a party lies to the Appellate Tribunal." [Emphasis Added]. 51. The Hon'ble Securities Appellate Tribunal, Mumbai in Bharat Jayantilal Patel vs. Sebi: 2010 SCC Online SAT 284, has in relation to an appeal under Section 15T of SEBI Act (which also contains the words "an order"), held: "6. We may now notice an objection raised by the learned senior counsel appearing for the Board. He contended that the present appeal was not maintainable and that the impugned communication dated July 22, 2010 was not "an order" within the meaning of Section 15T of the Act. We do not agree with him. The relevant part of Section 15T reads as under: "15T. [(1) Save as provided in sub-section (2), any person aggrieved, - (a) by an order of the Board made, on and after the commencement of the Securities Laws (Second Amendment) Act, 1999, under this Act, or the rules or regulations made thereunder; or (b)....
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.... Act or by the Adjudicating Authority under section 8 of the Act as the case may be; Mr. Saud"s contention is that the appeal shall be maintainable against the orders passed under section 8 of the Act and since the impugned order is passed under section 11 of the Act, the appeal is not maintainable. The plea of the learned counsel for the respondent is to be rejected. Section 26 of the Act stipulates that any person aggrieved by an order made by the Adjudicating Authority may prefer an appeal to the Appellate Tribunal. An "order" has not been restricted by the said section and consequently the scope of the section cannot be restricted by the rule. In the circumstances, the appeal from an order made by the Adjudicating Authority shall be maintainable, even if the order is not under section 8 of the Act" [Emphasis Added]. 53. Therefore, a conspectus of the aforesaid judgements, is that there is no distinction between the words "any order" and "an order" occurring in Sections 26 and 42 of the PMLA, and that every order of the AA, whether final or not, is appealable to the AT under Section 26 of the PMLA. One must bears in its mind that the final order passed by the Adjudic....
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....iff is dismissed or decreed in part or in full. Such an order passed by the trial Judge indisputably and unquestionably is a judgment within the meaning of the letters patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench. (2) A preliminary judgment.-This kind of a judgment may take two forms-(a) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the trial Judge would be a judgment finally deciding the cause so far as the Trial Judge is concerned and therefore appealable to the larger Bench. (b) Another shape which a preliminary judgment may take is that where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under Section 80 and the like, and these objections are decided by the trial Judge aga....
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....terlocutory order. Similarly, suppose the trial Judge passes an order setting aside an ex parte decree against the defendant, which is not appealable under any of the clauses of Order 43 Rule 1 though an order rejecting an application to set aside the decree passed ex parte falls within Order 43 Rule 1 clause ( d) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of letters patent. The fact, however, remains that the order setting aside the ex parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the trial Judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is therefore, appealable to a larger Bench. 116. We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of ....
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.... an adjudicating authority under Section 16 and make such order as it thinks fit. The phrase "any order" in Section 19(6) once again clearly indicates that it is not restricted and limited to the final order. Section 16(3) requires the adjudicating authority to hold an enquiry under Section 16(1). Section 16(5) deals with the powers of the adjudicating authority during such enquiry. Section 16(6) provides for the enquiry to be disposed of within a timeframe, failing which reasons are to be recorded in writing for not disposing of the complaint within the said period. Thus, there are a variety of orders that could be passed under Section 16 and not only a final order. All such orders would be revisable by the Appellate Tribunal in exercise of its power under Section 19(6) if they effect valuable rights. Consequently, the words "any order" in section 19(6) and an order in 19(1) would be given the same meaning. (c ) The Order passed by the Adjudicating Authority on 15th November 2017 from which the present appeal arises is clearly a final order since the same records that the adjudication proceedings are concluded albeit without any hearing. By paragraph 17 of the said Order dated ....
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....than Rs. 5 lacs then the matter should be heard Division bench as the Act at that time provides bench by Single Member or Chairperson but in the present case the case under enquiry involves crores of rupees, therefore, the matter could not have been heard by a Single Member or Chairperson as the case may be. 7. That the order dated 13.11.2017 is without jurisdiction because Section 20 have been omitted by Finance Act, 2017 w.e.f. 01.04.2017, therefore, now the matter cannot be heard by a Single Member or Chairperson hence the order dated 13.11.207 itself is without any jurisdiction and the present appeal is an outcome of the order dated 13.11.2017, therefore, are not maintainable as against the order which is nullity in law." 63. It is not denied by the respondent that the said objection was not raised either in the earlier appeal or hearing of the present appeal. It is taken first time in the written submissions filed by the respondent. As the respondent has raised the objection, it is become necessary to deal with the said objection also. 64. After examining the provisions of the Act and settled law on this issue, I am of the view that the said objection is without....
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....s context, it must be noticed that under Section 6 PMLA, the AA is supposed to consist of the Chairperson and two other members - one of whom shall be a person having experience in the field of law. Section 6(3) further sets out what the qualifications for appointment as a member of an AA should be. One of those qualifications is that the person has to be qualified for appointment as a District Judge or a person in the field of law or a member of an Indian Legal Service. The other qualification is possession of a qualification in the field of finance, accountancy or administration as may be prescribed. It is, therefore, not the case that all the members of the AA should be judicial members. 80. It is seen that under Section 5 PMLA, the jurisdiction of the AA - may be exercised by the Benches thereof. Under Section 6(5)(b) PMLA, a Bench may be constituted by the Chairperson of the AA - with one or two members of the Chairperson may deem fit. Therefore, it is possible to have single-member benches. The word "bench' therefore does not connote plurality. There could, even under Section 6(5)(b) PMLA, be a "single member bench'. When Section 6(6) PMLA states that a Chairperson c....
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....re Tribunals under Article 323-B of the Constitution of India. The AA is not that kind of a Tribunal at all. The Court is, therefore, unable to agree with judgements of the learned Single Judges of the Sikkim and Gujarat High Courts in this context. There are other reasons why the Court finds that the aforementioned decisions of the learned Single Judges of the Sikkim and Gujarat High Courts cannot be concurred with. They fail to notice that under Section 25 PMLA, an appeal is provided for from the order of the AA before the AT. Even so, such an AT is not the equivalent to the High Court since an appeal against the order of the AT is provided to the High Court itself. Thus, the hierarchy of judicial review authorities under the PMLA presents a very different scheme from what is found in other statutes, particularly the ATA. 85. Under the PMLA, however, we first have a decision by an authority under Section 5(1) PMLA. Then we have a review of that decision by the AA under Section 8 PMLA. Then we have an appeal against that decision to the AT under Section 25 PMLA. These authorities, i.e. the AA and the AT, need not be entirely manned only by JMs. They can be AMs as....
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....l be decided by the learned single Judge of this High Court. It will be open to the Respondents to raise all pleas, including that of maintainability, before the learned Single Judge. No opinion is expressed with regard thereto. 68. In view of above referred Judgement and the provisions of Section 12(6A) it is not fair on the part of the Respondent to contend that the Chairman sitting in this Tribunal was not empowered and have jurisdiction to hear the appeal no. 83 of 2017. 69. Despite of specific provisions and settled law, the objection was raised by the respondent in its written submission as well as the time of hearing of appeal no. 87/2017 hold on 09.01.2018. I am of the view that in the manner in which the respondent castigated, humiliated the warning system of this Tribunal in a selective way and without any valid reason which is highly unjustified and uncalled for. The respondent has infact tried to lowered the image of this tribunal and tried to put pressure. It is disrespected the chair as the conduct of the respondent is very unfortunates. I reject the submission of the respondent accordingly. 70. The next argument of the respondent is that the document in ques....
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.... Mr. D.K. Sinha. 74. The appellant filed an appeal before Appellate Tribunal, Foreign Exchange Management Act, 1999 against the said two orders dated 12.10.2017 under Section 19 of the FEMA Act, wherein this Tribunal vide orders dated 13.11.2017 granted liberty to the appellant to move two independent applications (i) for further cross-examination or recall of witness Mitil Chokshi and (ii) towards production of documents and directed that the above mentioned application to be adjudicated by the Adjudication Authority on their merits. The order also stated that the Adjudicating Authority should not proceed with the main matter until the said applications were first decided on merits. 75. In view of the order dated 13.11.2017 passed by the Appellate Tribunal, Foreign Exchange Management Act, the Appellant filed two applications both dated 14.11.2017 seeking the following reliefs: i. Application No. FPA-FE-83/MUM/2017 (for cross-examination):- a. Mr. Mitil Chokshi be recalled by your Honour for cross- examination; b. That further dated be fixed by your Honour towards cross- examination of Mr. Mitil Chokshi; c. That the present application be ....
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....7 and that there is no scope of any ambiguity regarding supply of engagement letter of C&C to the appellant. 79. After dismissing both applications, Special Director asked the counsel for the appellant to argue the main matter. Upon counsel stating that he was not in a position to do so since, cross-examination according to the appellant was incomplete and in any event, the appellant be given an opportunity to challenge the order of rejecting the applications until such time the matter should be adjourned. 80. The Special Director had decided to closing the opportunity for personal hearing and treating conclude the hearing of the main matter. Thereafter reserved the main matter for orders. 81. It is evident from the order dated 15.11.2017 that the Special Director has the said order imputed dilatory and delay tactics to the appellant and its advocates. In para 15 of the said order the Special Director has listed some dates in order to justified the remarks made. 82. As already mentioned that it is the case of the appellant that the document appearing at page 191, Folder III of the Memo of Appeal, being the 72 line items/assumption sheet, (hereinafter referred to as the ....
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....ng Authority; it has been clear contended by the appellant that it is only the document appearing at page 191, Folder III of the Memo of Appeal. (the said Assumption Sheet), which was handed over on 20th September, 2017, and not any other document. 88. The text of both the application and appeal are reproduced. In the application dated 14th November, 2017, the following submission appears at paragraph 15 (e) at internal page 5 of the Application (appearing at page 170 of Folder III of the Memo of Appeal): "15 (e) Questions are to be asked about the basis and source of assumption made by C&C in forming its opinion in as much as on 20th September, 2017 at the culmination of that day's proceedings, Mr. Chokshi handed over a "Valuation Assumption/Line item Sheet" (which sheet is attached as the last page to the witnesses transcript- Annexure 2 above). The Company has not had any opportunity to question the witness about the contents of the said sheet since it was handed over at the culmination of proceedings on 20th September, 2017." (emphasis supplied) 89. In the present appeal no. 88 of 2017, the following submission appears at Ground H appearing at page 15 of Folde....
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....the Sheet provided by Shri Chokshi during the course of cross examination and the counsel did not their after asked any question relating to that sheet (Page 191) hence the cross examination concluded as recorded by the Adjudicating Authority at the end of the cross examination and counter singed by the counsel of the appellants without making any request for further cross examination. 7. I sate that as far as the contention of the appellant that further cross examination is necessary/required as certain documents were produced by the witness at the end of recording the cross examination including the document available at page No.191 which has been filed in the Appeal and is available in the document file, it is to submit that page No.191 refers to in appeal records is the sheet containing the details of 11 line items of Income and 61 lined items of Expenditure submitted by Shri Mitil Chokshi, while answering to Question No. 40. Excepting this sheet, no other sheet/document was either produced or taken from the witness Shri Mitil Chokshi, during the course of his entire cross examination . Hence, it is incorrect to say that " certain documents' including the sheet were gi....
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.... in the said Assumption Sheet, other than line item No. 11 "other non-operating income"; no specific amounts attributable to any of the other line item Nos. 1 to 10 can be discerned and/or individually identified from the Working Sheets and the percentage variation attributable to none of these 11 income/revenue items is mentioned/indicated in the Working Sheets and 61 expenditure line items, appearing in the said Assumption Sheet other than line item Nos. 1 (Franchise Fee), 2 (Cost of Players) and 61 (Depreciation/Amortization); no specific amounts attributable to any of the other 58 items can be discerned and/or individually identified from the Working Sheets and the percentage variation attributable to none of these 61 expenditure items is mentioned/indicated in the Working Sheets. 95. It is denied on behalf of the appellant that Q. 41 to 45 of the cross- examination of Mr. Mitil Chokshi, (held on 20th September, 2017), covers the case of the appellant. It is clarified that infact question 41 to 45 put forth by the Appellant"s authorized representative were with a reference to the audited accounts of the appellant and the C&C Working Sheets provided to the Appellant by the Re....
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.... the witness can be recalled for further cross examination or not in view of contents mentioned in the application. 99. Order 18 Rule 17 reads as under: 17. Court may recall and examine witness:- The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit. 100. It is not denied on behalf of respondent that as per provisions of Act that all cases will have to be considered in the manner as civil court. It is also not denied that the cross examination of witness can be allowed if serious controversy of issue is involved though code of civil procedures is not applicable but its principals are applicable. It is also not in dispute that the doors of natural justice can never be closed. In the present case the authority itself felt the cross examination is necessary in view of controversy involved. It is not denied that number of matters are pending before Adjudicating authority for the last more than many years. 101. The case of the appellant was that the crucial document was not given prior to 20th September, 2017. 102. Many judge....
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....on the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquires and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proce....
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....derlying the existence of the courts of justice." 16. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself. 17. In the r....
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....id Smt. V. Kalyani and Mr. D. K. Sinha. The impugned order of rejection was passed without giving any reasons. 111. In the Order dated 15th November 2017, (which is the Impugned Order in Appeal No. 88 of 2017), by and under paragraph 13 thereof, the Ld. Adjudicating Authority inter alia recorded that in his view, the application/request towards cross-examination of the said Smt. V. Kalyani and Mr. D. K. Sinha was a delaying tactic adopted by the Appellant and therefore the Ld. Adjudicating Authority had decided to proceed with the main matter without granting to the Appellant the right to cross-examine the said two officers. 112. It is submitted on behalf of the respondent that the foundation for the cross-examination of Mr. D. K. Sinha was laid in question nos. 19 - 21 of the cross-examination of Mr. Mitil Chokshi 113. It is submitted on behalf of the appellant that the primary foundation of the present adjudication proceedings is the Investigation Report dated 10th August 2012, made by Mr. D. K. Sinha. It is on the basis of this report that the private agency of M/s. Chokshi & Chokshi, (chartered accountants), were engaged on mutually agreed commercial terms by the Enfor....
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....torate on 10th January 2012 has clearly stated that he had reviewed a copy of the Franchise Agreement in making his valuation report. 116. Thus on the face of report, there are discrepancies that the Investigating Officer, Mr. D. K. Sinha, and he is to be cross-examined to explain his Investigation Report, particularly since the Opinion of M/s. Chokshi & Chokshi relies on this Investigation Report. 117. Law on the issue of cross-examination of relevant witnesses (if the serious issues are involved) before the Adjudicating Authority. The Hon'ble Supreme Court of India in the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & others reported in (2013) 4 SCC 465, has inter alia held that not only should be opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice." 118. The Constitution Bench of the Hon'ble Supreme Court of India in State of M.P. v. Sada....
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....ls civil consequences, then even if an opportunity of being heard may not be explicitly set out in the applicable legal provisions, the adherence to the principles of natural justice has to be read into such a statute. 19. There can be no dispute that the action permitted under section 61 of the FERA, 1973 certainly results in drastic penal consequences..." (iv) The Hon'ble Supreme Court of India in Ramesh Ahluwalia Vs. State of Punjab & Ors. 2012 (10) SCALE 46 had observed that: "18. This is in conformity with the principle that justice must not only be done. Actual and demonstrable fair play must be the hallmark of the proceedings and the decisions of the administrative and quasi judicial courts. In particular, when the decisions taken by these bodies are likely to cause adverse civil consequences to the persons against whom such decision are taken." IV-A The Hon'ble Supreme Court of India in Ashiwin S. Mehta and Anr. Vs. Union of India (UOI) and Ors. (2012) 1 SCC 83 had observed that: "27. It is thus, trite that requirement of giving reasonable opportunity of being heard before an order is made by an administrative, quasi judicial or ....
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.... the assessee had specifically asked to be allowed to cross-examine the representatives of the concerned firm, in order to establish that the goods in question had been accounted for in the firm"s books of accounts and excise duty had been paid thereof. The Court held that such a request could not be turned down, as the denial of the right to cross-examine, would amount to a denial of the right to be heard i.e. audi alteram partem. (vii). In K.L. Tripathi v. State Bank of India & Ors., AIR 1984 SC 273, the Hon'ble Supreme Court has held that in order to sustain a complaint of violation of the Principles of Natural Justice on the ground of denial of opportunity to cross- examine, it must be established that some prejudice has been caused to the party by the procedure followed. A party which does not want to controvert the veracity of the evidence on record or does not want to controvert the testimony gathered behind its back cannot expect to succeed in any subsequent grievance raised by him on the ground that no opportunity of cross-examination was provided to him especially when the same was not requested and especially when there was no dispute regarding the veracity of the sta....
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....to the Director of Enforcement and before the Appellate Board during the pendency of the appeal to summon four witnesses for cross-examination, were not dealt with by the authorities below. It was held: "5. Non-summoning of the said witnesses for purposes of cross-examination has resulted in miscarriage of justice." 119. From the entire gamut of the matter, I am of the considered opinion that where the results in penal consequences and where an action under the statue entails civil consequences, the plea of delay by civil not allowing the request in order to finalizing the proceedings get the truth is not tainable or justified and particularly in a matter where indeed injustice would cause to the party in view of severe prejudice. 120. The refusal may amount to violation of the principles of fair hearing and affecting the rights of the appellants. The argument of the respondent can be accepted simply saying that cross-examination was un-necessary particularly. 121. There is no material in record to show that the appellants have admitted the all allegation of the Complaint and investigation report in their statement recorded. The decision referred by Mr. Awasthi in....