TaxTMI 
TaxTMI 
2019 (8) TMI 265
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....is felt necessary to know the background of both the appeals and impugned orders. In both the appeals the parties are same and the issues referred to this Bench are also same, so both the appeals are taken together for a common Judgment and Order. 4. Common facts in both the appeals: The appellant no. 1 is a company incorporated under the Indian Companies Act, 1956 and has its registered office at 8th floor, Backstage, Plot No.612, 15th Road, Junction of Ramkrishna Mission Road, Santacruz (West), Mumbai - 400054. Appellant no. 1 is engaged in Sporting and other related activities, appellant no.2 is noticee no. 2 and appellant no.3 is noticee no. 3 under the Show Cause Notice dated 24th March, 2017 issued by the Respondent. The Special Director of Enforcement, Adjudicating Authority, issued a Show Cause Notice bearing No. T-4/01-B/SDE (VA)/WR/2017/1434 to the appellants on 24th March, 2017. The said Show Cause Notice is based upon a complaint dated 09th December, 2016 filed by one Mrs. V. Kalyani (Assistant Director). 5. (I). APPEAL No. FPA-FEMA-87/MUM/2017 This appeal has been preferred under Section 19 of the Foreign Exchange Management Act, (FEMA) 1999 against the impug....
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....ation of both the aforesaid ED officials, as unjustifiable. It was also informed by the undersigned that the cross-examination of Sh. Mitil Chokshi, the partner of M/s. Chokshi & Chokshi was concluded on 20.09.2017, as duly noted in the record of cross-examination, which was also given to the advocate of the noticees. 5. The Ld. Advocate was directed by the undersigned to proceed with their arguments in the matter. In response, the Ld. Advocate sought for time, since the appeal filed before the ATFE is due to be taken up on 13.11.2017. The Advocate was directed to file a written submission to this effect. The Ld. Advocate undertook to file their submission/application by 31.10.2017. The matter has been adjourned for a hearing on 15.11.2017 at 15:30 hrs. (VINEET AGARWAL) SPECIAL DIRECTOR Adjudicating Authority" (II) APPEAL No. FPA-FEMA-88/MUM/2017 This appeal has been preferred under Section 19 of the Foreign Exchange Management Act, (FEMA) 1999 against the impugned order dated 15th November, 2017 passed by Special Director, Directorate of Enforcement at Mumbai, with prayers to set aside the impugned order and permit to: (i) recall Mr. Mitil Chokshi as witness and con....
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....awala & 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 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 at 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 allowed to conduct further cross examination of the said Shri Mitil Chokshi, in the interest of natural justice and fair play.....
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....' 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 document/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 calculation 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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....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 KRSPL 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 oif 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 ....
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....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) Letter dated 12.10.2017 intimating the next date of personal hearing posted on 30.10.2017. (iv) 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 date of personal hearing was fixed on 15.11.2017. 17. Since, the aforesaid two appeals have now been disposed of by the Hon'ble ATFE, New Delhi on 13.11.2017, the leaned 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 ma....
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....s valuable rights of a person aggrieved or the Central Government. It is not limited to a final order under Section 13 read with Section 16. iii. The first proviso to Section 19 (1) is a specie whereas the words "an order" appearing in the Section 19 (1) is genus. iv. The phrase 'any order' in Section 19 (6) clearly indicates that it is to be given wide and liberal interpretations and is not restricted or limited to final order. Section 16 requires the Adjudicating Authority to hold any inquiry, etc., and variety of orders all of which are different species of the genus 'an' or 'any' order that could be passed under this section and not only a final order (relied on judgment passed by Hon'ble Supreme Court in the matter of Kandla Export Corporation & Anr. v. OCI Corporation & Anr. reported in 2018 (14) SCC 715). All such orders would be revisable by Appellate Tribunal in exercise of its power under Section 19 (6) if they affect valuable rights. v. The words 'any order' in Section 19 (6) and 'an order' in Section 19 (1) should be giving the same wide and liberal meaning. vi. Section 35 deals with Appeals to the High Court and provides for an Appeal to the High Court by a....
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....ttal Vs. Central Bank of India - 1998 (94) Comp Cases 466 (Delhi). b. Passed by Hon'ble High Court of Madhya Pradesh in the matter of PCC Construction Co. Vs. DRT - 2003 (1) MPJR 260. c. In the matter of Bharat Jayantilal Patel Vs. SEBI - 2010 SCC Online SAT 284. d. Passed by Hon'ble High Court of Kerala in the matter of Abdul Khader Vs. CESTAT - 2016 (336) ELT 389. e. In the matter of (i) Vedanta Limited Vs. Commissioner of Customs, Tuticorin (10.01.2018 - CESTAT, Chennai), and (ii) Swiber Offshore Construction Pvt. Ltd. Vs. Commissioner of Customs, Kandla (2014 [301] ELT 119 (CESTAT - Ahmedabad)). 10. The contentions of the respondent, in support of their stand that the appeals are not maintainable. The sum and substance of the contentions are as below: i. That FEMA is a complete code which prescribes certain procedures for Adjudicating Authorities to follow. The procedure has been prescribed under Foreign Exchange Management (Adjudication Proceeding and Appeal) Rules 2000 under different Rules thereunder. ii. For the first time the word "order" mentioned under Rule 4(8). Rule 4(1) upto 4(7) does not contend the word "order", therefore, the order passed at the....
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....ndia & Ors. (2014) 208 DLT 56. viii. The order passed by this Tribunal on dated 13.11.2017 is without jurisdiction because Section 20 has been omitted by Finance Act, 2017 which came into effect on 01.04.2017. ix. The Tribunals are creature of statutes and hence the appeals could be heard as per the procedures prescribed under the law. They cannot give a different meaning or interpretation to the provisions under the Act. Under the Act only appeal is prescribed after the order of penalty is made and before that since proceedings are inquiry in nature cannot be termed as an order. x. There was conclusion of cross-examination of Mr. Mitil Chokshi on 20.09.2017 which was recorded by the authority and countersigned by the counsel for the appellants. xi. There is incorrect interpretation of Section 19 (6) of the Act. xii. The present appeals are filed with a view to delay the process of adjudication which is at the final stage by wrongly invoking the jurisdiction of this Tribunal. So, the appeal may be dismissed with exemplary costs. DISCUSSION: 11. Admittedly the appeals have been filed under Section 19 (1) of FEMA, 1999. Having regards to the aforesaid facts and cir....
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....of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order: Provided that the High Court may, ......." The words "an order" appearing in Section 19(1), "any order" appearing in Section 19(6) and the words "any decision or order" appearing in Section 35 above are emphasized by the undersigned. 14. The word "order" has not been defined under FEMA, 1999 nor it has been defined under the general definitions provided in Section 3 of General Clauses Act, 1897. However, the word "order" has been defined under Section 2 (14) of CPC which reads as follows; "(14) "order" means the formal expression of any decision of a Civil Court which is not a decree;" 15. The Legislature in its wisdom has used the words "any order" and "any decision and order" in Section 19 (6) and Section 35 respectively, whereas the words "an order" has been used in Section 19 (1) of FEMA, 1999. 16. The word "an" used before the word "order" in Section 19 (1) is in singular form. According to Section 13 (2) of General Clauses Act, 1897 words in singular shall include the plural, and vice-versa. In the light of the aforesaid provision the word "an order" used ....
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....artered accountant, as the case may be, the contravention, alleged to have been committed by such person indicating the provisions of the Act or of rules, regulations, notifications, direction or orders or any condition subject to which an authorisation is issued by the Reserve Bank of India in respect of which contravention is alleged to have taken place. (5) The Adjudicating Authority shall, then, given an opportunity to such person to produce such documents or evidence as he may consider relevant to the inquiry and if necessary, the hearing may be adjourned to future date and in taking such evidence the Adjudicating Authority shall not be bound to observe the provisions of the Indian Evidence Act, 1872 (1 of 1872). (6) While holding an inquiry under this rule the Adjudicating Authority shall have the power to summon and enforce attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of the Adjudicating Authority may be useful for or relevant to the subject matter of the inquiry. (7) If any person fails, neglects or refuses to appear as required by sub-rule (3) before the Adjudicati....
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....Special Director, Directorate of Enforcement case, before the Hon'ble High Court of Delhi in the matter of CRL.A. 276 of 2008, the question of maintainability of the appeal, in the given circumstances, before the Appellate Tribunal was neither raised nor decided. 22. The appellants have relied on the judgment of the Hon'ble High Court of Punjab & Haryana in the matter of Sandeep Singh Sandhu Vs. Debt Recovery Tribunal, [1998 SCC OnLine P&H 1844 : (1999) 2 BC 556]. In the said judgment the Hon'ble High Court had considered the question of the meaning of the words "any order" and the words "an order" occurring in Section 17 (2) and Section 20 (1) respectively of Debts Recovery Tribunal Act. The relevant portion of the said judgment is reproduced below: "13. The contention of Mr. Mittal, learned Counsel for the petitioner, that the powers of this Court under Article 227 of the Constitution are very wide and can be exercised in matters like the present one where the Tribunal has acted illegally resulting in injustice to the petitioner, has no force because the Act provides an adequate and efficacious remedy for obtaining relief in respect of an order passed by the Tribunal by way ....
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....002 (J). In this case Hon'ble High Court of Madhya Pradesh has categorically held that an appeal against an order, which substantially affects the rights and liabilities of a party, shall lies to the Appellate Tribunal. The most important thing that has been held in the said judgment was that the order to be questioned before the Appellate Tribunal should have substantially affected the rights and liabilities of the party. 24. The appellants have also relied on the judgment of Hon'ble Supreme Court passed in the matter of Kandla Export Corporation & Anr. v. OCI Corporation & Anr. reported in 2018 (14) SCC 715). The Hon'ble Supreme Court has dealt with the Arbitration and Conciliation Act, 1996 and Commercial Courts Act. The fact and circumstances and the languages of these acts are different and the legal issues raised therein is not the same. Hence, the judgment is not applicable and is of no help to the appellants. 25. Similarly, the judgment delivered by Hon'ble Supreme Court in the matter of Ayaaubkhan Noorkhan Pathan Vs. The State of Maharashtra and Ors. and relied on by the appellants is not applicable to the present fact and circumstances of the case in hand. In the sa....
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....ly resides or carries on business or personally works for gain; and (b) where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily resides or carries on business or personally works for gain." 17. A reading of Section 35 makes it clear that jurisdiction has been clearly conferred on the High Court to entertain an appeal within 60 days from "any decision or order" of the appellate authority. But such appeal has to be on a question of law. The proviso empowers the High Court to entertain such an appeal after 60 days provided the High Court is satisfied that the appellant was prevented by sufficient cause from appealing earlier. 18. The argument under Section 35 only appeals from final order can be field has been advanced on a misconception of the clear provision of the section itself. The section clearly says that from "any decision or order" of the Appellate Tribunal, appeal can be filed to the High Court on a question of law. 19. The word "any" in this context would mean "all". We are of this opinion in view of the fact that....
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....ion of the Calcutta High court in Jokhiram Kaya v. Ganshamdas Kedarnath, [AIR 1921 Cal 244]. This Court is in respectful agreement with the aforesaid view of the learned Judge. 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' or '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 vs. M.K. Gupta [(1994) 1 SCC 243 : (AIR) 1994 SC 787]. 25. While construing the expression "service of any description" under Section 2(o) of Consumer Protection Act, 1986 this Court held that the meaning of the word "any" depends upon the context and the subject-matter of the statute and held that the word "any" in Section 2(o) has been used in wider sense extending from one to all (para 4 at SCC p. 255). 26. In the instant case also when a right is conferred on a person aggrieved to file appeal from "any" order or decision of the Tribunal, there is no reason, in the absence of a contrary statutory intent, to give it a restricted meaning. Therefore, in....
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....e Hon'ble Supreme Court in the aforesaid matter is exclusively regarding the interpretation of words "any decision or order" appearing in Section 35. In the said judgment it is held that "any order", "any decision" of the Appellate Tribunal would mean all decisions or orders of the Appellate Tribunal, and all such decisions are, subject to limitation, appealable to the High Court on the question of law. In the aforesaid judgment, no question was raised/decided before/by the Hon'ble Supreme Court on the interpretation of the word "an order" and maintainability of appeal under Section 19 (1) of FEMA, 1999 so in my considered view this decision is not applicable to the present facts and circumstances of the case. Hence, it is of no help to the appellants. 27. The appellants have compared the word "any order" appearing in Section 19 (6) with the word "an order" appearing in Section 19 (1) of FEMA, 1999 and have contended that the scope and meaning of words "an order" is same with the words "any order". I do not agree with the submission of the learned counsel for the appellants. Had it been the intention of legislature to have the same scope and meaning of the words "an order" and "a....
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....rights and liabilities are substantially affected by the impugned order. (f) The learned counsel for the appellants contended that this Tribunal in the matter of Knight Riders Sports Pvt. Ltd. Vs. Special Director, Enforcement Directorate in appeal no. 83/2017 by its order dated 13.11.2017, has inter alia already decided the scope and interpretation of Section 19 (1). The said appeal was an appeal against an order closing cross-examination of witness mainstream. The issue of maintainability of the appeal was raised and the Tribunal made the following observations; "...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..." (g) In spite of the aforesaid order dated 13.11.2017 of the Single Bench of this Tribunal, the Division Bench comprising of Hon'ble Chairman and Member have their individual judgments on the issue of maintainability of present appeals. Further there is no bar in raising the question of law before the larger Bench. The contentions of the appellants that this Bench cannot decide the maintainability issue, is without any basis. Th....
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....for the issue of a commission to go to No. 17, Alipur Road and to prepare a plan of the premises. By his order dated May 29, 1965 the Controller rejected the application. He said : "The petitioner came into the witness box and the respondent had full opportunity to cross-examine him regarding the extent of accommodation in his possession. He has stated that the other portions of 17, Alipur Road, Delhi are in possession of other persons. Previously also, such an application was made by the tenant which was disallowed by me, vide my order dated 7-3-1964. I see no further reason to review my previous order and allow this application." 2. From this order, the appellant filed an appeal to the Rent Control Tribunal. The Tribunal held that no appeal lay from the aforesaid order of the Controller under s. 38(1) of the Delhi Rent Control Act, 1958, and on this finding dismissed the appeal. The High Court agreed with this decision of the Tribunal. The appellant now appeals to this Court by special leave. The question in this appeal is whether an appeal lay to the Tribunal under s. 38(1) from the aforesaid order of the Controller. 3. The Delhi Rent Control Act, 1958 empowers the Cont....
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....rties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under s. 37(2) is an order passed under the Act and is subject to appeal under s. 38(1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal. 5. Similar considerations have induced the Courts to give a limited construction on the apparently wide words of other statutes conferring rights of appeal. Section 202 of the Indian Companies Act, 1913 confers a right of appeal "from any order or decision made or ....