TaxTMI 
TaxTMI 
2018 (3) TMI 1250
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....ion 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, 2017 ........................................................................... We ad....
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....eg. 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, separately. 4. This letter is issued with the approval of the Special Director of Enforcement, Mumbai. Yours faithfully, -Sd- (V. Kalyani) Assistant Director 4. In the background of the above facts, the appellant filed an appeal on 30.10.201....
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....n 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 but without any expressing any opinion in view the contents mentioned in the letter dated 12.10.2017 counsel for the appellant at this stage seeks liberty to move the application for further cross-examination or recall of witness. The same may be filed as per law and if any such application is filed, the same will be determined by the Adjudicat....
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....n 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 engagement of C&C on the issue of shares of KRSPL, the Hon'ble Appellate Tribunal has given a direction that if any such application is filed before the Adjudicating Authority, the same will be decided by the Adjudicating Authority, as per its own merit. 5. The learned counsel contended that the cross examination of Shri Mitil Chokshi by the Advocate of the Noticee Company held on 20.09.2017 was inconclusive and hence they should be allo....
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....PL 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 other hand, they had projected various sources of revenues, which did not exist realistically. v) The methodology adopted by C&C in arriving at the valuation on the value of KRSPL shares was not in consonance with the requirements of the CCI guidelines. vi) The prize money won by KRSPL for one year was taken as income for the subsequent years as well which is unrealistic, as there is no guarantee for winning the prize money by KRSPL year after year. 8. After a careful examination....
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....e 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 ruling vide its order dated 13.11.2017 directing the Adjudicating Authority to decide the said application as per its own merits. In this regard, it is revealed from records that a copy of the engagement letter dated 26.06.2013 was provided to M/s KRSPL vide this office letter dated 14.08.2017 and there is no scope of any ambiguity regarding supply of engagement letter of C&C to M/s KRSPL. I, therefore, find that there is no merit in the application filed by M/s KRSPL, seeking inspection of the said letter/document. Accordingly, I ....
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....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 appeal filed by them before the Hon'ble ATFE, New Delhi was due to be taken up on 13.11.2017. Accordingly, the next of personal hearing was fixed on 15.11.2017. 17. Since the foresaid two appeals have now been disposed of by the Hon'ble ATFE, New Delhi on 13.11.2017, the learned counsel, who appeared for the personal hearing on 15.11.2017, was directed to go ahead with the arguments, but he refused to proceed with the arguments by stating that he was not in a position to proceed with the arguments on the main issues, till the decision is taken by the Hon'ble ATFE on the appeals now p....
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....ubsequently, 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 against the person aggrieved. There is no restriction or limitation to the words "an order" in Section 19(1). 2. On a perusal of the scheme 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 affects 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. When an Appeal is filed against an order levying penalty, there is specific reference to such an Appeal. See the first proviso to Section 19(1) which states as under: "Provided....
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.... 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 Division Bench of the Bombay High Court was pleased to hold that the authority cannot refuse to produce documents only on the perception that the documents are not relevant. The matter was remanded back to enable the petitioner for cross examining the witnesses. Non- production of witnesses for cross-examination it was held is violative of principles on natural justice and fair play and need no judgements. We may gainfully refer to the judgement in Arya Abhushan Bhandar V. Union of India [2002 (143) E.L.T. 25 (SC)]. In Sunder Ispat Limited V. Commissioner of Cus. & C. Ex., Hyderabad [2002 (141) E.L.T. 24 (A.P.)], a learned Division Bench of the Andhra Pradesh High Court held that the witnesses exam....
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.... 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 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, which were separately handed over to the Appellant much later, (on 14th August, 2017), refers to a capitalization rate of 20% being applied and not 15% (see page 816, Folder IIIA of Memo of Appeal), it is inter alia amongst this and other such discrepancies that, Mr. Mitil Chokshi must explain these discrepancies as appearing in his Opinion as against the support work sheets. It is submitted that whilst no prejudice would be caused to the Respondent by the recall of the witness, grave injustice and grave prejudice would be caused to the Appellant if the Appellant was not permit....
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.... 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 comity of instrumentalities...." Reference has also been made to the decision of the Hon'ble Supreme Court wherein similar view which has been expressed by the Hon'ble Supreme Court in Hintendra Rajeev Pathak and also in case of K.K. Chari Vs. R.M. Seshadri (1973) 1 SCC 761, wherein it has been held: "....A quasi-judicial tribunal acting within jurisdiction may decide rightly or may decide wrongly. If it decides wrongly there are provisions in the Act itself for appeal, revision and ultimately even revision by the High Court under the provisions of Section 115 CPC or even under Article 227 of the Constitution. Of course, by a wrong decision on a jurisdictional fact a quasi-judicial tribunal with a limited jurisdiction cannot confer juri....
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....t 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 hence cannot give a different meaning or an interpretation to the provisions and under the Act only appeal is prescribed after the order of penalty is made and before that since proceedings are enquiry in nature cannot be termed as an order. Mentioning that the interpretation raised by the appellant is that under Section 19(6) of the Foreign Exchange Management Act, 1999 this Tribunal has the power to interfere with any order, the respondent has contended that the reference of any order is the only order of penalty because the language of the Section clearly indicates to examining the legality, propriety or correctness made by the Adjudicating Authority under section 16 and Section 16 of the Act relates to the process to be followed by the Adjudicating Authority and ....
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....L 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 adopted by C&C for the evaluation of KRSOL shares in terms of the prevailing CCI guide lines; the acceptability and supremacy of this methodology against the methodology adopted by the Auditor of KRSPL; the documents analyzed for the purpose of valuation and its legal acceptability, etc. 6. I state that under question No. 40, a specific query was raised by the counsel for KRSOL regarding the underlying assumptions made by C&C in their Opinion for the unusual high growth rate of 12% on the total income of KRSPL for the FY 2013-14 as against its income for the FY 2012-12. While answering Question No. 40, Mr. Chokshi referred to an internal paper (i.e. Page 191 of the appeal paper book and as recorded in order dated 22.11.2017). The counsel for KRSPL sought a copy of that paper, which was provided to them as du....
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.... 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 department nor relied upon in the Show Cause Notice. No new fact was brought out through this paper and it contains various line items of Income and expenditure, showing and trend of increase/decrease in percentage (%), the details of which are available as figures in the Work Sheet provided to KRSPL earlier. It is also worthwhile to mention that this office, while providing the said work sheet to KRSPL, has informed them that if they required any clarifications on the said documents, the same should be communicated on or before 19.08.2017 i.e. before the cross examination. However, no clarification on the documents forwarded under letter dt. 14.08.2017 was sought by KRSPL. The cross examination thus was concluded on 20.09.2017, as duly recorded in the transcript of the cross examination, which was countersigned by the Counsel for....
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....ant 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. By the order dated 22nd November, 2017, this Hon'ble Tribunal has inter alia recorded and directed as follows: One of the submissions out of many made by the appellant is 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 life. The counsel for the respondent denies the submission of learned counsel for the appellant. He seeks time to file the affidavit in this regard within one week to the effect the copy of the said document was supplied to the counsel much earlier point of time. Let the affidavit be filed within one week with an advance copy to the learned counsel for the appellant who may file the response, if any, within one week thereafter." (emphasis supplied) 6....
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....eal: "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", which was only provided to the Appellant at the culmination of that day"s proceedings on 20.09.17 and, as such, the Appellant did not have any opportunity to question Mr. Mitil Chokshi about the contents of the said statements." (emphasis supplied) 9. It is therefore specifically denied that any false and/or misleading and/or incorrect statements whatsoever, have been made by the Appellant in this regard. The record itself clearly establishes that it was and is the Appellant"s contention that the said Assumption Sheet was only handed over to the Appellant at the culmination of proceedings on 20th September 2017. Additionally, it is also submitted that, the Respondent has nowhere denied the said contention of the Appellant as appearing both in the Application dated 14th November 2017 and in the Memo of Appeal as reproduced hereinabove. In fact, at the time of the hearing on 22nd November 2017, it is the Respondent who orally subm....
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.... 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" hereto respectively. 12. From a perusal of the Working Sheets and the Assumption Sheet, it is evident that of the 11 income/revenue line items appearing 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. Additionally, the percentage variation attributable to none of these 11 income/revenue items is mentioned/indicated in the Working Sheets. 13. Similarly, of the 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. Additionally, the percentage variation attributable to none of these 61 expenditure items is mentioned/indicated in the Working She....
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....e 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 the Appellant under cover of the letter dated 14th August 2017. The answer is also from the audited accounts of F.Y. 2012-2013 and not from the Assumption Sheet. In fact, the Assumption Sheet makes no reference to "Administrative & Other Expenses". This question was not asked from the Assumption Sheet. Q. 45 - this is a follow up question to Q. 44. It was asked with a reference to the audited accounts of March 2012, March 2013 and not asked from the Assumption Sheet. 15. As quoted by me (from the Application dated 14/11/2017 and the present Appeal), in paragraph 8 hereinabove, I reiterate that, the Appellant did not have any opportunity to question the witness about the contents of the said Assumption Sheet, since it was handed over at the culmination of proceedings on 20th September 2017. I reiterate that questions 14 to 15 put to the witness were not raised from the Assumption Sheet. 16. In paragraph 8 of the said "affidavit" it is also wrongly contended that, although called upon to do so, the Appellant did not se....
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.... submissions, has wrongly contended that this Hon'ble Tribunal did not have jurisdiction when sitting singly and when it passed an Order dated 13th November 2017 in Appeal No. 83 of 2017, also filed before this Hon'ble Tribunal. It is submitted that this contention is both mischievous and ex-facie incorrect. Whilst it is admitted that the erstwhile Section 20 of Foreign Exchange Management Act, 1999 ("FEMA"), specifically provided for the constitution of a single member bench in the Appellate Tribunal and this Section has been omitted by the Finance Act, 2017; Section 18 of FEMA was also amended in the year 2017 whereby, the constitution of the Appellate Tribunal under FEMA is now to be the same as the Appellate Tribunal constituted under sub-Section (1) of Section 12 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. The constitution of the Appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 is under Section 12 of that Act. Amendment to Section 12(6A) effective from 1st June 2016 specifically provides that where the Chairman considers it necessary for the expeditious disposal of app....
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....it is also submitted that the judgement passed by the Delhi High Court in the case of Arun Kumar is not applicable to the facts of the present case for the following reasons amongst others, each of which is without prejudice to one another: i. The judgement of Arun Kumar is in the context of Prevention of Money Laundering Act, 2002 ("PMLA") and the various analysis under that judgement is in the context of PMLA. As against this the present Appeal has been filed under FEMA and under the provisions of Section 19 thereof. The scheme of the statutes is entirely different. As aforesaid, the Appellant has filed detailed Written Submissions in the matter relating to the maintainability of the present Appeal under Section 19 of FEMA. With respect it is submitted that the appeal provisions of PMLA cannot simplicitor be made applicable to the appeal provision of FEMA which are different. ii. It is to be noted that Section 19(6) of FEMA empowers the Appellate Tribunal to suo-moto examine the "legality, propriety or correctness of any order" made by 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 in....
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....sised that this judgement is in context of FEMA and passed by the Division Bench of the Delhi High Court on 29thMay 2013." FURTHER SUBMISSIONS OF THE APPELLANT In view of the order of this Tribunal dated 09th January, 2018 both the parties were allowed to file the written synopsis. The appellant vide letter dated 16th January, 2018 submitted as under: "These Written Submissions are being filed on behalf of the Appellant pursuant to the order dated 9th January 2018, passed in the matter. A. ADOPTION OF WRITTEN SUBMISSIONS DATED 6TH DECEMBER 2017 AND SUPPLEMENTARY WRITTEN SUBMISSIONS DATED 9TH JANUARY 2018 FILED BY THE APPELLANT IN APPEAL NO. 88 OF 2017. i. The Appellant relies upon and adopts in their entirety, the Written Submissions and Supplementary Written Submissions filed by this Appellant in this Hon'ble Tribunal on 6th December 2017 and 9th January 2018 in Appeal No. 88 of 2017. ii. Appeal No. 88 of 2017 is primarily in context of the recall/cross- examination of the witness on behalf of the Respondent, Mr. Mitil Chokshi. iii. The present appeal is primarily towards seeking the cross- examination of the other witnesses on behalf of the Respondent,i.e. the Comp....
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....in relation to "issuance" of shares to a non-resident). vi. The Opinion on valuation issued M/s. Chokshi & Chokshi, in or about October 2014, although expected to be an "independent opinion", ex-facie relies heavily upon the conclusions drawn in the said Investigation Report dated 10thAugust 2012. vii. In the course of his part cross-examination held on 20th September 2017, Mr. Mitil Chokshi had inter alia been unable to explain as to how and why the said Investigation Report was made available to M/s. Chokshi & Chokshi towards giving their "independent" opinion on valuation to be based on the erstwhile CCI Guidelines (only); and not to be based upon any other conclusions or findings. In Q.19 to Q.21 of his cross-examination, Mr. Chokshi confirms that M/s. Chokshi & Chokshi had not asked for the said Investigation Report but the same had been made available to them, (See pages 221&222 Folder III of the Memo of Appeal). viii. In giving their Opinion in October 2014, the said Investigation Report is marked as "Exhibit 7" to the said Opinion by M/s. Chokshi and Chokshi. It is therefore an admitted position that the Opinion of M/s. Chokshi & Chokshi relies upon the said Investiga....
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....ot maintainable under Foreign Exchange Management Act, 1999. 2. That under Foreign Exchange Management Act, 1999 only appeal can be filed with the Adjudicating Authority passes an order imposing penalty as contemplated under Section 19(1). Since the proceedings before the Adjudicating Authority are in the nature of enquiry as detailed under Section 16 of the Act and during enquiry the proceedings cannot be termed as an order as enquiry does not contemplate passing any order during the adjudication. 3. That the respondents is relying on the written submission filed in Appeal 88 of 2017 and are not repeated herein for the sake of brevity, however the present written submissions are filed to respond to the factual matrix raised in the present appeal. 4. The following payers were made by the applicant in the subject Appeal:- a. Set aside the order dated 30.10.2017 passed by the Adjudicating Authority, rejecting the request for cross examination of the above officials of ED. b. Allowing Cross- examination of the above officials. c. Stay of the adjudication proceedings till the disposal of the subject Appeal. 5. Justification given by the appellant in the appeal filed befor....
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....prepared and is given below;- (Adjudication Proceedings in SCN No. T-4/01-B/SDE(VA)/WR/2017 dated 24.03.2017 issued to M/s KRSPL & 2 others. IMG That the appellant has not approached this Tribunal with clean hands and made all attempts to mislead and misguide this tribunal by making wrong submissions and improving the case by raising pleas which are not substantiated from the record of the Adjudicating Authority." FINDINGS/DECISION Before one goes into the merits of the appeal, the main issue that has to be examined relates to the admissibility of the appeal. As stated earlier, the applicant has made an appeal to this Tribunal u/s 19 of the FEM Act-1999. In order to examine the admissibility of the instant appeal, it is imperative to re-produce/examine the provisions of Section 19 of the said section, which reads as under: - "19. Appeal to Appellate Tribunal (1) Save as provided in sub-section (2), the Central Government or any person aggrieved by an order made by an Adjudicating Authority, other than those referred to in sub-section (1) of section 17, or the Special Director (Appeals), may prefer an appeal to the Appellate Tribunal: Provide....
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....eedings and make such order in the case as it think fit." 2. A perusal of the above said provision authorizes\entitles any person aggrieved by an order by the Adjudicating Authority to prefer an appeal to this Tribunal. In the instant case, it is an admitted case that this appeal has been made against the record of personal hearing held on 15.11.2017 in the office of Special Director, Directorate of Enforcement, Mumbai. In the said record, the Special Director has dealt with three applications submitted by the counsel of the appellant for consideration by the Adjudicating Authority. After consideration of the said three applications, the Adjudicating Authority has decided to conclude the Adjudication proceedings in the matter in terms of provisions of FEMA, 1999 and "reserved for orders". 3. The above observation of the Adjudicating Authority would clearly show that hearing was conducted by him as part of adjudication proceedings and no order has been passed by him. 4. In case of the instant appellant, it is also observed that the four appeals have been filed. The details of the appeals and the prayer therein are as under: 1) Appeal No. FPA-FE-83/MUM/2017 In the said appeal fi....
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....Appellant be permitted to (i) recall Mitil Chokshi as witness and conduct the cross-examination (ii) fully and effectively cross-examine the Complainant Mrs. V. Kalyani and the Investigation Officer Mr. D. K. Sinha. (iii) Pending the hearing and final disposal of this Appeal, the Subject adjudication proceedings initiated under the said Show Cause Notice, be stayed, and no order be passed therein. (iv) Pass such other order(s) as deemed fit and proper in the facts and circumstances in this case. 5. A perusal of item (iii) of the said prayers of the appellant in all the 4 appeals filed reads as under: "That pending the hearing and final disposal of this Appeal, the subject adjudication proceedings initiated under the said Show Cause Notice, be stayed and no coercive action be taken against the Appellants." which clearly indicates that the appellant accepts that the Adjudication proceedings have been initiated and no order has been passed therein. The perusal of the hearing on 15.11.2017 also indicates that Special Director, Enforcement Directorate, Mumbai - in pursuance of this Tribunal"s order dated 13.11.2017- has examined the issue regarding further cross examination and ....
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.... stated earlier, the instant appeal has been filed by the appellant against "record of personal hearing" held on 15.11.2017 in the office of the Special Director of Enforcement, Mumbai. 10. It may be mentioned that as per item (ii) in the 4 appeals filed by the appellant, a prayer has been made to this Tribunal for directing the Adjudicating Authority to follow a particular course of action in the Adjudication process, which is summarized as under: 1) Appeal No. FPA-FE-83/MUM/2017 That a further date be fixed for completion of the cross-examination of the witness, Mr. Mitil Chokshi. 2) Appeal No. FPA-FE-84/MUM/2017 That the Special Director of Enforcement be directed to provide Appellants full, fair and complete inspection and discovery of documents as requested. 3) Appeal No. FPA-FE-87/MUM/2017 That the Appellants be permitted to fully and effectively cross-examine the Complainant Mrs. V. Kalyani and the Investigation Officer Mr. D. K. Sinha. 4) Appeal No. FPA-FE-88/MUM/2017 Appellant be permitted to (i) recall Mitil Chokshi as witness and conduct the cross-examination (ii) fully and effectively cross-examine the Complainant Mrs. V. Kalyani and the Investigation Of....
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....tainable. 14. The above observation finds support from the decision of the Division Bench of Hon'ble Delhi High Court in the case of Arun Kumar Mishra Vs Union of India & Ors. (2014) 208 DLT 56 wherein in Paras 9 and 13 the Hon'ble High Court has held as under: "9. We have however invited the attention of the senior counsel for the appellant to Cooper Engineering Ltd. Vs. P.P Mundhe (1995) 2 SCC 661 laying down that there is no justification for a party to stall the final adjudication of the dispute by questioning the decision on preliminary issues and to S.K. Verma Vs. Mahesh Chandra (1983) 4 SCC 214 deprecating the practice of raising preliminary issues/ objections, to delay and defeat adjudication on merits and to D.P. Maheshwari Vs. Delhi Administration (1883) 4 SCC 293 also laying down that all issues whether preliminary or otherwise should be decided together so as to rule out the possibility of 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 prelimina....