TaxTMI 
TaxTMI 
TaxTMI 
2018 (10) TMI 1081
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppeal No. 51/DLI/2017 Order in original No. 8/2008 dated 25.02.2008 (impugned order) Appeal filed on 14.07.2017. Delay of around 9 years. 2. All the appeals have been filed under the provisions of the Foreign Exchange Management Act, 1999. As per Section 19 of FEMA every appeal shall be filed within a period of 45 days from the date on which a copy of the order made by the adjudicating authority is received by the aggrieved person provided that the Appellate Tribunal may entertain an appeal after the expiry of 45 days, if it is satisfied that there was sufficient cause for not filing it within that period. I have heard the appellant as well as the respondent and also gone through their written submissions. 3. Broadly, the argument of the appellant is: a. That the adjudication orders (the order in originals) in all the above four appeals was not served on them when they were passed, b. That they were served on them in prison where the appellant was lodged, c. That the appellant has been in jail since February, 2017, d. That the orders were earlier served by pasting the same on the premises which as per the respective mazhar of the witnesses states that the appellant....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... were returned by postal authorities after redirecting to No. 18, East Abhirampuram, IIIrd Street, Chennai-04, with postal remarks „No Such Addressee‟. This was communicated by the Deputy Director, ED, Chennai to the Special Director, ED, New Delhi vide their letter dated 08.09.2008. b) That at the time of the passing of the order in original, all these orders were served on the appellant through the advocate who was appearing in the personal hearings before the adjudicating authority, which is a normal procedure and even the appellants have accepted the said fact. c) Therefore, the provisions of Rule 9(a) and 9(b) of FEMA (Adjudication Proceedings and Appeal Rules 2000) have been fulfilled. d) Ultimately the orders were pasted on the last known addresses of the appellant under „mazhars‟ before witnesses. The details are as under; i. Order in original 14/2009 dated 20.08.2009 pasted under Mazhar dated 19.07.2010 at No. 18, East Abhirampuram, IIIrd Street, Chennai (Appeal NO. 48/DLI/2017). ii. Order in original 10/2008 dated 19.03.2008 pasted under Mazhar twice on 29.01.2009 and again on 06.03.2009 at the above said address and at 68/69, Habibula Ro....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... hearings. Obviously, he was a duly authorised person otherwise neither could he appear in the adjudication proceedings nor would the adjudicating authority entertain him. This goes on to prove that the orders have been received by the authorised person. Notwithstanding the above, the respondent‟s effort to again serve it through Registered Post AD to the last known addresses of the appellant as available on record so that the penalty levied in each of the impugned order could be recovered, is also brought out by the postal authorities endorsement „No Such Addressee‟ (at two addresses). Thirdly, the orders were ultimately pasted on the last known addresses/premises under proper mazhar as mentioned above, which are all on record. 7. I do not find any evidence given by the appellant to disprove the above, while they have fairly accepted that the orders were served on the advocate of the appellant at the relevant time. 8. It is also a fact that the appellant has not made any effort, once the adjudication procedure was complete to intimate to the respondent/department about any change of address, which they were duty bound to do in case they had left residing at th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigat....