TaxTMI 
TaxTMI 
2018 (3) TMI 1250
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....rom the records - are that during the Adjudication proceedings before the Adjudicating Authority, cross examination of Shri Mitil Chokshi, Partner of M/s Chokshi & Chokshi, Chartered Accountant, Mumbai (C&C) had been conducted. As per records, the cross examination was recorded on 20th September, 2017 and the same was conducted upto 6:00 pm and thereafter it was concluded with the approval of Dr. D.K. Sheth, Authorized Representative/CA of the appellant. 2. Subsequently, the appellant - vide letter dated 5th October, 2017 addressed to the respondent - had taken the plea that the cross examination had remained incomplete and requested for next date. The said letter dated 5th October, 2017 addressed to the Special Director, Directorate of Enforcement, Mumbai, reads as under: - 5 October, 2017 Mr. Vineet Agarwal Special Director, Enforcement Directorate, Western Regional Officers, Janambhoomi Chambers, 1st Floor, Walchand Hirachand Marg, Mumbai-400001. Sir, Re: Cross enamination of ("the cross examination") of Mr. Mitil Chokshi - Partner M/s Chokshi LLP, by our Authorised representative/CA, Dr. Dilip K. Sheth on 20th September, ....
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.... Attn: Ms. Saloni Ganesh CFO Sir(s), Sub: Cross examination of Mr. Mitil Chokshi, Partner of M/s Chokshi & Chokshi LLP by Dr. Dilip K. Sheth, Authorised Representative of M/s KRSPL on 20/09/2017-reg. This has reference to your letter dated 5th October, 2017 on the captioned subject wherein you have stated that the cross examination of witness. Mr. Mitil Chokshi, partner of M/s Chokshi & Chokshi, by your Authorised Representative /CA, Dr. Dilip K. Sheth, held on 20th September, 2017 remained incomplete. 2. In this connection, it may please be noted that the cross examination of Mr. Mitil Chokshi held on 20th September 2017 was concluded on the same day i.e. 20th September, 2017 which was duly recorded in the transcript of the Cross Examination held on 20.09.2017 has also been provided to your Authorised Representative. 3. You may please note that the next date of personal hearing in the matter is fixed for 23rd October, 2017 at 15:30 Hrs, for the purpose of recording your oral arguments/written submissions, before the Adjudicating Authority. A Call Notice to this effect has been sent to all the noticees in the subject SCN, separa....
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.... by the appellant to the Department. It appears from the letter dated 10th October, 2017 issued by the Enforcement Directorate where it is mentioned that the next date of hearing was 23rd October, 2017, thereafter in the letter dated 12th October, 2017, Enforcement Directorate has specifically informed appellant that has cross examination was also concluded. The learned counsel for the appellant also stated that since there is no specific order passed on 20th September, 2017 in order sheet file thereafter it cannot be assessed that cross examination of Mr. Chokshi was concluded. As per his client further cross examination is yet to be conducted. 5. The said arguments are refuted by the Mr. Rajiv Awasthi, Counsel for the respondent who submits that the said appeal filed by the appellant is not maintainable. He says that the cross has already been concluded. As far as the maintainability of appeals is concerned, I am of the view that the appeal is maintainable against the orders where the valuable rights are decided against the parties passing the orders. As far as prayer made in the appeal is concerned to set-aside the order dated 12th October, 2017, I am not inclined with ....
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....'ble Appellate Tribunal, for recall of Shri Mitil Chokshi, Partner of M/s Chokshi & Choskhi (C&C), Chartered Accountants, for further cross examination; ii) Application dated 14.11.2017, enclosing copy of the ATFE order dated 13.11.2017, on their application filed before the Hon'ble Appellate Tribunal, seeking inspection of the letter / document of ED, mandating M/s. C&C, to give its opinion towards valuation of KRSPL shares "Issued"; iii) Letter dated 15.11.2017, enclosing a copy of letter dated 14.11.2017 from M/s Karanjawala & Co., Advocates, addressed to Mr. Rustom Mulla, Advocates, informing the filing of Appeal No. 87/2017 before the Hon'ble ATFE, New Delhi, seeking cross examination of Smt. V. Kalyani, the Complainant and also Shri D. K. Sinha, Assistant Director. 3. In the 1st ATFE Order dated 13.11.2017, the Hon'ble Appellate Tribunal directed the Adjudicating Authority to decide the application "filed by KRSPL, for further cross examination or recall of witness, on its merit, before hearing the main matter. 4. In the second Order passed by the Hon'ble ATFE, New Delhi, on the application filed by KRSPL, for the supply of the letter of en....
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.... 7. The Ld. Counsel also submitted that the reasons for further cross examination of Shri Mitil Chokshi were enlisted at para 15 of their application dated 14.11.2017 which shall be considered by the Adjudicating Authority. The Ld. Counsel also mentioned the following points to substantiate his request for further cross examination of Shri Mitil Chokshi. i) The mandate given by ED for engagement of C&C was for giving opinion on fair valuation of KRSPL shares "Transferred" whereas, the Opinion given by C&C relates to the valuation of KRSPL shares "Issued" which was beyond the scope of mandate given to them; ii) The scope of appointment of C&C was for giving their Opinion on the fairness of valuation done by CAs of KRSPL, whereas the C&C had given the valuation of shares based on their own assessment; iii) It is not known from the opinion given by M/s. C&C as to what are the documents/information provided by the ED to enable them to give their opinion on the fairness of valuation of KRSPL shares. iv) Various expenses incurred year after year on a recurring basis which are on the books of account were not taken into account by C&C and on the ....
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....on 20.09.2017. Since there is no new issue, on which further cross examination is now being sought, the request made in the application dated 14.11.2017, for recalling of Shri Mitil Chokshi, for further cross examination, is disallowed. 10. Also, the request made in the said application, seeking adjournment of the main matter till such time the appeal is filed by the company, in the event of rejection of their application by the Adjudicating Authority, is also rejected by the undersigned as the Hon'ble Appellate Tribunal had already given a ruling on this issue in its order dated 13.11.2017, whereby, the Adjudicating Authority was directed to decide the said application as per merit, before hearing the main matter. 11. In the second application dated. 14.11.2017, a prayer was made by KRSPL for inspection of letter/documents mandating C&C to give its opinion towards the valuation of shares "Issued" and in case, the same is not allowed by the Adjudicating Authority, the matter should be adjourned till such time an appeal is filed against the said order. The Hon'ble Appellate Tribunal, while disposing of the application filed by KRPSL on this issue, had given a rulin....
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....he Hon'ble Appellate Tribunal. In my view, these are all tactics adopted by the noticee to cause interruption in the proceedings. 15. It is important to place on record that numerous opportunities of personal haring were given to the noticees to make their submissions and in the relevant Call Notices issued for personal hearing, it was categorically mentioned that in case they fail to appear on the said date, the matter will be decided on the basis of evidence and material available on record. The details of call notices issued posting the case for personal hearing on various dates are given as under:- (i) Call Notice dt. 20th July 2017 posting the case for personal hearing on 23.08.2017. (ii) Call Notice dated 21.08.2017 posting the personal hearing on 20.09.2017. (iii) Call Notice dated 20.10.2017 posting the case for personal hearing on 30.10.2017. 16. During the course of personal hearing held on 30.10.2017 the learned counsel was directed by the Adjudicating Authority to proceed with their arguments on the main charges alleged in the subject SCN, but he refused to proceed with the arguments and sought for further time since the appe....
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.... Mrs. V. Kalyani and the Investigation Officer Mr. D.K. Sinha on the ground that the cross examination of Mr. Mitil Chokshi had not been concluded and he be recalled. The request for fully and effectively cross examining the complainant Mrs. V. Kalyani and the Investigation Officer Mr. D. K. Sinha was made for the first time. Apart from placing some decisions on "Right to Recall", the learned counsel for the appellant submitted that various documents had been produced by the witness at the end of the recording of the cross examination including the documents available at page no. 191 which had been filed in the appeal. Subsequently, written submissions/synopsis on behalf of the appellant have been filed vide letter dated 06th December, 2017. The submissions of the appellant briefly, are, as under: A. Maintainability of Appeal under Section 19 of the Foreign Exchange Management Act, 1999 ("FEMA/the Act") 1. The present Appeal is maintainable under Section 19(1) of FEMA. The present Appeal is in relation to an order which affects the valuable rights of the Appellant in relation to violation of principles of natural justice. Section 19(1) applies to an order passed agai....
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....would be given the same meaning. Placing further reliance on the observation of this Tribunal in the matter of Knight Riders Sports Private Limited v. Special Director, Enforcement Directorate in Appeal No. 83 of 2017 wherein the following observation has been made that: "...As far as the maintainability of appeals is concerned, I am of the view that the appeal is maintainable against the orders where the valuable rights are decided against the parties...", the appellant has stated that even the instant appeal is maintainable. B. Right of the Appellant to recall the witness for further cross- examination Mentioning that cross examination of a relevant witness is an essential and necessary facet of natural justice in Adjudication Proceedings, the appellant has referred the case of Commissioner Of Central Excise v/s Parmarth Iron Pvt. Ltd. 2010 [ 2010 (260) ELT514(ALL.)] wherein the High Court of Allahabad highlighted the relevance of cross-examination in Adjudication proceedings and inter-alia, whilst referring to much judicial precedence on the point observed. "In Kellogg India Pvt. Ltd. V. Union of India, [2006 (193) E.L.T. 385 (Bom.)], a ....
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....ff from the grain. Another reason being to satisfy itself that the person whose statement was recorded had made it voluntarily and based on his personal knowledge or legal records which can come out in cross-examination. This is to ensure the Court or Tribunal or the authority conducting the proceeding arrives at the correct conclusion based on tested evidence before it. The issue also is no longer res intergra in view of the large number of judgements of the Supreme Court." (a) - Relevance of the Witness and Legal provision for Recall : Mentioning further that Mr. Mitil Chokshi is a relevant witness for the present adjudication proceedings, the appellant has stated that it is absolutely necessary that the right and approval to continue/further cross-examine Mr. Mitil Chokshi and/or summon or recall Mr. Mitil Chokshi as a witness be granted to the Appellant. (b) - Necessity to recall the Witness It has also been pleaded by the appellant that "With further reference to paragraph 15(c) of the said Application dated 14th November, 2017; whilst page 126, Folder III of the Memo of Appeal (internal page 17 of the Opinion) refers to fair value arrived at by PECV me....
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....pret or exceed its jurisdiction and they are strictly bound by the provisions of the Act, the respondent has drawn attention to the decision of the Hon'ble Supreme Court in Union of India Vs. Devki Nandan Aggarwal 1992 Supp.(1) SCC- 323 wherein the Apex Court has held as under: "...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 unambiguous. The court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and ....
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.... the present appeal, being non-maintainable - is liable to be dismissed. The respondent had also challenged the jurisdiction in respect of order dated 13.11.2017 passed by this Tribunal allowing the appellants to move application for recall of witness and directing the Adjudicating Authority to dispose of the same in accordance with law on the ground that the said order has been passed by a Single Member or Chairman whereas as per the mandate of Foreign Exchange Management Act, 1999, Section 20 laid down that if the penalty amount was more than Rs. 5 Lacs then the matter should be heard by the Division Bench, whereas in the present case the enquiry involves crores of rupees. It has also been argued by the respondent that the order dated 13.11.2017 is without jurisdiction because Section 20 has been omitted by Finance Act, 2017 w.e.f. 01.04.2017 and, therefore, the matter cannot be heard by a Single Member Bench. Another contention of the respondent is that the Tribunal is a creature of an Act and hence the appeals could be heard as per the procedure prescribed under the law and since the Tribunal are not vested with the power of Article 226 of the Constitution of India hen....
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.... the document available at Page No. 191 which has been filed in the Appeal and is available in the Document file..." 3. I state that the appellants have not stated the truth before this Hon'ble Tribunal and made incorrect statement. The true and correct facts and that, the cross-examination of Shri Mitil Chokshi, Partner of M/s Chokshi & Chokshi was held on 20.09.2017, before the Adjudicating Authority by Shri Dilip K. Sheth, CA & Counsel for three noticees in the SCN viz. KRSPL, Smt Gauri Khan and Shri Shah Rukh Khan, in connection with the adjudicating proceedings in respect of Show Cause Notice No. T-4/01-B/SDE(VA)/WR/2017 dated 24.03.2017. 4. I state that during the entire course of cross-examination, 45 specific questions were put to Shri Mitil Chokshi by the Counsel for KRSPL and other noticees, which were answered by Shri Mitil Chokshi, as duly recorded in the transcript of cross-examination. 5. I state that the question raised by the Counsel were wide rangingand covered all aspect, viz. the mandate given by the department to C&C to conduct such an exercise for giving their opinion on the fairness of valuation of KRSOL shares; the methodology adopt....
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....l of the appellants, without making any request for further cross examination. 7. I state 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 line 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 i.e. Page No. 191 were given by the witness at the end of his cross examination. 8. I state that, it is also noticed that the Sheet produced by Shri Mitil Chokshi during the course of cross examination is not a new document, but an internal paper for reference of C&C, which was neither provided to the depar....
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.... "1. I say that I am the Chief Financial Officer ("CFO") of the Appellant. I am also a qualified Chartered Accountant. 2. I am familiar with the facts and records of this matter and I am therefore in a position to depose thereto. I am making this affidavit for the limited purpose of setting on record certain true and correct facts. I am making this affidavit in pursuance of the order dated 22nd November, 2017 passed by this Hon'ble Tribunal. 3. I say 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 said "Assumption Sheet"), bearing the initials of Mr. Mitil Chokshi was handed over to the Appellant at the culmination of the day"s proceedings on 20th September, 2017. 4. I say that on 12th December, 2017, the Respondent has served upon the Appellant a document entitled as an affidavit, of Mr. Joseph George, Deputy Director, Directorate of Enforcement. I have perused a copy of the said "affidavit". Ex-facie the "affidavit" travels far beyond the reasons and/or the purpose for which the same was directed to be filed by this Hon'ble Tribunal. 5....
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....and Appeal in this regard. - 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 assumptions 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) - In the present Appeal No.88 of 2017, the following submission appears at Ground H appearing at page 15 of Folder I of the Memo of Appeal: "H. The Ld. Special Director erred and failed to consider that the reasons set out in detail in the application for recalling the witness; included a request to question the witness on the "Valuation Assumption/Line Item Sheet"....
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....is Hon'ble Tribunal is called upon to determine in the present appeal and the submissions made in that regard in the said "affidavit" are therefore without reason. That was an issue in Appeal No. 83 of 2017 before this Hon'ble Tribunal, which was disposed off by a final order dated 13th November, 2017 and which has worked itself out. The deponent of the said "affidavit" cannot by the said "affidavit" seek to re-agitate the final order in Appeal No. 83 of 2017. 11. Under paragraph 8 of the said "affidavit" there is also an incorrect contention by the Respondent that no new fact was brought out by the said Assumption Sheet (appearing at page 191 of Folder III of the Memo of Appeal) and that the various line items of income and expenditure as appearing therein are such that, the details thereof were already available as figures in the "Working Sheets" (appearing at page 815-817 of Folder III A of the Memo of Appeal). I submit that this is an incorrect statement and is not borne out upon an assessment of both the said Working Sheets and the said Assumption Sheet. For ease of reference, I am attaching the said Working Sheets and the said Assumption Sheet as "Exhibits-1 and 2" h....
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.... Note 13: "Revenue from Operations of the audited accounts for F.Y. 2012-2013". From the answer to Question 41, it is apparent that it was culled out from the audited accounts. The Assumption Sheet makes no reference to the sum of Rs. 10 Crore nor to the sum of Rs. 4.98 Crore. This clearly shows that the question was not asked from the Assumption Sheet. Q. 42 - "Revenue from Participation fee" appears as the 5th line item in Note 13: "Revenue from Operations of the audited accounts for F.Y. 2012-2013". This question on the "estimate" was not asked from the Assumption Sheet. Also, the question was not about the percentage increase based on the revenue from this fee. Q. 43 - this is a statement made on the basis of the audited accounts. This was a follow up question based on the answer to question no. 42. The answer to question no. 43 is with a reference to the actual numbers till 31st March 2013 contained in the audited accounts and not from the Assumption Sheet. This question was not asked from the Assumption Sheet. Q. 44 - this is with reference to the audited accounts of the Appellant for F.Y. 2012-2013 read with one of the Working Sheets providing to t....
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....mit that the said "affidavit", as sought to be filed by the Respondent and which is being responded to herein, is not an affidavit since it is not affirmed and/or sworn before a person authorized to administer oath and consequently no reliance can be placed upon the same. SUPPLEMENTARY WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT: The appellant vide letter dated 09th January, 2018 submitted as under: "These Supplementary Written Submissions are filed in addition to the Written Submissions filed by the Appellant on 6th December 2017 pursuant to the order dated 22nd November 2017 passed in the matter. The necessity towards the filing of these Supplementary Written Submissions is to set on record the correct position in view of certain incorrect statements and assertions made by the Respondent in their Written Submissions filed before this Hon'ble Tribunal on 7th December 2017. A. Jurisdiction of this Hon'ble Tribunal and the ability to constitute a bench with a single member. 1. The Respondent under paragraphs 6 and 7 of their written submissions, has wrongly contended that this Hon'ble Tribunal did not have jurisdiction when sitting singly an....
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....ngly, the Respondent cannot seek to reopen and reagitate that matter in the present appeal. It is submitted that such practices by litigants should be deprecated in the strongest possible manner. B. Reliance by the Respondent on the judgement passed by the Delhi High Court in the case of Arun Kumar Mishra vs Union of India 208(2014) DLT 56 ("Arun Kumar"). 1. Under paragraph 5 of the Written Submissions filed by the Respondent, the Respondent has selectively picked out paragraph 9 from the captioned judgement in order to create a prejudice against the Appellant in context of the power and ability of this Hon'ble Tribunal to interfere with any order of the adjudicating authority, (not being an order levying any penalty). 2. By and under the Written Submissions filed by the Appellant on 6th December 2017, the Appellant has set-out in detail its submissions relating to the maintainability of an appeal under Section 19 of FEMA arising from an order passed by an Adjudicating Authority, (not being an order levying any penalty). The Appellant reiterates the same. 3. Additional thereto, it is also submitted that the judgement passed by the Delhi High Court ....
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....s thereafter reserved the same for orders. Whilst the present appeal and the grounds of appeal clearly deal with the illegality of passing such order without any hearing, without prejudice to the rights and contentions of the Appellant, it is submitted that if indeed the said Order dated 15th November 2017 is upheld by this Hon'ble Tribunal, then and in those circumstances the Appellant would have no further opportunity to re-agitate the matter before the Adjudicating Authority since he has concluded the proceedings. The case and facts of Arun Kumar is very far away from these facts and for this reason also cannot be relied upon by the Respondent in the present matter. It is pertinent to note that in the case of Shahid Balwa vs Directorate of Enforcement 201 (2013) DLT 211 (DB) [Page 271-283 Folder III to the Memo of Appeal], passed on 29thMay 2013, a Division Bench of the Delhi High Court dealing with the an appeal arising from a Writ Petition filed under the provisions of FEMA has permitted and granted to the appellant therein, the right to cross-examine the witnesses relied upon by the Directorate of Enforcement. It is emphasised that this judgement is in context of FEMA ....
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.... 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. iv. It is submitted 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 (See pages 221 & 222 Folder III of the Memo of Appeal) and para 8 of the reply dated 5th June 2017 filed by the Appellant. v. It is submitted 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 Enforcement Directorate to give their opinion on the valuation of shares, (albeit the mandate from the ED was in relation to "transfer" of share to ....
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....ation report. xi. It is submitted that it is inter alia also for this amongst other such discrepancies that the Investigating Officer, Mr. D.K. Sinha, must be cross-examined to explain his Investigation Report, particularly since the Opinion of M/s. Chokshi & Chokshi relies on this Investigation Report, and, in turn and consequently, the Complaint filed by Mrs. V. Kalyani relies on both the Investigation Report and the Opinion of M/s. Chokshi & Chokshi. xii. It is submitted that whilst no prejudice would be caused to the Respondent by reason of the cross-examination of Mr. D.K. Sinha; grave injustice and grave prejudice would be caused to the Appellant if the Appellant is not permitted to cross-examine Mr. D.K. Sinha. Detailed further grounds in this regard, are duly set out in the memo of Appeal." FURTHER SUBMISSIONS OF THE RESPONDENT As stated earlier, as per the order of this Tribunal dated 09th January, 2018 both the parties were allowed to file the written synopsis. The respondent - vide letter dated 17th January, 2018 - has submitted as under: "These Written Submissions are being filed on behalf of the Respondent pursuant to the order dated....
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.... to the Appeal filed by KRSPL were verified with the case records. These documents are fully documented and recorded and available in the relevant case file. 6. It is submitted that in Para (A) under the title 'Grounds' in the Appeal No. 87 of 2017, the Appellant has made a submission that "there has been an apparent contact amongst the Investigation officer, Mr. Chokshi and the Complainant in the preparation of the Chokshi Valuation Report". The above submission is totally baseless and contrary to the facts. The service of M/s C&C was roped in by the Department to secure their opinion on the fairness of valuation of shares done by the auditors of M/s KRSPL. To enable M/s C&C to discharge this specific task, certain inputs were provided by the then Investigating officer (viz. Sh. D.K.Sinha, AD) to get an overview of facts related to the enquiries. This cannot be termed as a 'contact' between the Investigation Officer, Mr. Chokshi and the Complainant, as wrongly made out in the aforesaid Para in the Appeal. Hence, this wrongful averment is whehemently denied and it shows that the appellant has habit to make wrong averments to mislead this Hon'ble tribunal. ....
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....ccompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period. (3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (4) The Appellate Tribunal shall send a copy of every order made by it to the par-ties to the appeal and to the concerned Adjudicating Authority (or the Special Director (Appeals) as the case may be. (5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavor shall be made by it to dispose of the appeal finally within one hundred and eighty days from the date of receipt of the appeal: Provided that where any appeal could not be disposed off within the said period of one hundred and eighty days, the Appellate Tribunal shall record its reasons in writing for no....
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....ted 12th October, 2017 bearing File No. T-4/01-B/SDE(VA)/WR/2017/2417 passed by the Learned Special Director of Enforcement, be set aside. (ii) That the Special Director of Enforcement be directed to provide Appellants full, fair and complete inspection and discovery of documents as requested. (iii) That pending the hearing and final disposal of this Appeal, the subject adjudication proceedings initiated under the said Show Cause Notice, by stayed, and no coercive action be taken against the Appellants. (iv) Pass such other orders as deemed fit and proper in the facts and circumstances in this case. 3) Appeal No. FPA-FE-87/MUM/2017 In the said appeal filed before this Tribunal on 17.11.2017, the appellant has prayed as under: (i) That the said Order dated 30th October, 2017 passed by the Learned Special Director of Enforcement, be set aside. (ii) That the Appellants be permitted to fully and effectively cross- examine the Complainant Mrs. V. Kalyani and the Investigation Officer Mr. D. K. Sinha. (iii) That pending the hearing and final disposal of this Appeal, the subject adjudication proceedings initiated under the said S....
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....st 3 words of the Adjudicating Authority in the said hearing/record where he has observed "Reserved for Orders" 7. The procedure of filing the appeal before this Tribunal has already detailed in Section 19 of FEMA-1999. The said provision entitles the appellant to prefer an appeal to this Tribunal against an order passed by the Adjudicating Authority. In the instant case, the order has yet to be passed by the Adjudicating Authority. 8. Attention is also invited to the first and second Provisos to Section 19(1) of the Act dealing with "Appeal to Appellate Tribunal" which is as under:- "Provided that any person appealing against the order of the Adjudicating Authority or the Special Director (Appeals) levying any penalty, shall while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the Central Government: Provided further that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realization ....
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....propriety or correctness of any order" made by the Adjudicating Authority is not restricted and limited to the final order and that the words "any order" in Section 19(6) and "an order in Section 19(1) has to be given the same meaning is misconceived and misleading. This could not have been the intent of the legislature as every notice issued by Adjudicating Authority or hearing/enquiry conducted by Adjudicating Authority in the process of adjudication so as to enable him to pass an "order" could become a subject matter of appeal. 13. As stated earlier, attention is invited to the Provisos to Section 19(1) of the Act dealing with "Appeal to Appellate Tribunal" which is as under:- "Provided that any person appealing against the order of the Adjudicating Authority or the Special Director (Appeals) levying any penalty, shall while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the Central Government: Provided further that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, the Appellate Tribunal may dispense with such depo....
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....n. All this can be known only when the Adjudicating Authority passes an order and qua which if the appellants are aggrieved, the appellants shall have their statutory remedy." 15. Attention is also drawn to the decision dated 09.01.2004 of the Apex Court in the case of "The Special Director & Anr. Vs. Mohd. Ghulam Ghouse & Anr. (Appeal (crl.)35 of 2004) wherein the observations in para 4 and 5 of the said decision are as under: "4. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even to investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause no....