AI Drafter 
TaxTMI 
TaxTMI 
1999 (4) TMI 663
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....ellant-company had exported goods worth Rs. 5,27,58,945 to various parties in England, Nigeria and Europe under different GR Forms as detailed in Annexure 'A' to the Memorandum and that the company had failed to realise the full export proceeds of the goods from the countries within a stipulated period of six months from the date of exports. It is alleged that thereby the company contravened the provisions of section 18(2), read with section 18(3). It is further alleged that Ramanlal V. Shah and Bharat Shah were the Directors of the appellant-company and were responsible for its business and, therefore, they are liable to be proceeded against and punished under section 68(1). The department has relied, to substantiate the charge, on the statement of the outstanding GRIs as on 13-1-1995 as conveyed by State Bank of India, Vile Parle (E) Branch, the statements dated 10-10-1995 of Ramanlal V. Shah and 10-10-1995 of Bharat Shah, Directors of the appellant-company and the copies of 131 GR Forms specified in Annexure 'A' to the SCN. During the adjudication proceedings the total amount shown outstanding in Annexure 'A' to the SCN has been corrected by the learned Adjudicating Officer to b....
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....g without awaiting and considering the reply as required under rule 3(3) of the Adjudication Proceedings and Appeal Rules, 1974. Shri Patel further submitted that although the personal hearing was fixed in violation of rule 3(3), the counsel for the appellant did not oppose the proceedings but merely requested, for the first time, an adjournment of about four weeks to enable him to compile and file all documentary evidence of realisation of 131 GRIs. He submitted that the counsel's request for the first and only adjournment for the reasons stated by him cannot, by any standard, be considered to be unreasonable but the learned Adjudicating Officer turned down the request on a very strange and flimsy ground and by stating false facts. He pointed out that the request for adjournment was not well in advance and was turned down, through adjudication order on the ground that the counsel making the request was not authorised by the parties and the reason for this conclusion was not that the appellant had not authorised the counsel and executed any vakalatnama in favour of the counsel but the reason was that the counsel did not file vakalatnama along with the application for extension of t....
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....ation and had requested for extension of time well in advance of the time allowed. He submitted that the appellants, in the circumstances, cannot be accused of delaying the outcome of the proceedings. He pointed out that the appellants have been accused of delay whereas the impugned order itself was despatched in September 1997 though it purports to have been signed and sealed on 31-7-1997. 7. Shri Patel further submitted that even in his findings, the learned Adjudicating Officer has recorded certain facts that are contrary to the documentary evidence; he stated that no documentary evidence have been produced for extension of time whereas he had on its record RBI's letter of 24-3-1995 granting extension of time up to 31-3-1995 for 93 GRIs by which time the entire outstanding payments in respect of those 93 GRIs were duly received; the learned Adjudicating Officer has further stated that the appellants did not avail the opportunity to explain in person whereas he himself had admitted that an adjournment of the first hearing on 22-7-1997 had been sought; that he chose to reject the application only through the impugned order, thus, denying the opportunity of personal hearing thou....
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....ing three GRIs had also been realised before the issue of the SCN, the finding that the export proceeds of all the 131 GRIs indicated in the SCN were pending realisation, cannot be sustained. He submitted that apparently what led the learned Adjudicating Officer to pass the impugned order is the fact as he himself has noted, that he has taken into consideration the position as on 13-1-1993 only and the evidence of subsequent realisation was not considered. As undertaken by Shri Gadoo, the zonal office of the respondents directorate vide their communication of 29-10-1998 confirmed that the export outstanding in respect of all the remaining GRIs were fully realised. They have also filed copies of the bank's certificates in that regard. Thus, the department confirmed the position of total realisation shown in Shri Patel's tabular statement and no amount in respect of any of the 131 GRIs is pending realisation. 9. We have considered the submissions made by the parties and perused the records, and with particular care to the SCN and the impugned order. We find adequate force in Shri Patel's submission for all the reasons stated by him that the SCN as well as the proceedings placed he....
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....ould have been the basis for investigation or further investigation but it cannot be basis for framing any charges and issuing the SCN, unless of course, further investigation does not reveal any relevant information or evidence. In the present case, there was an evidence of RBI's extension, albeit for 93 GRIs up to 31-3-1995. Relying on the SBI's letter of 13-1-1993, therefore, was totally misconceived. The learned Adjudicating Officer further erred in completely shutting out from consideration the evidence of realisation furnished by the appellant from time to time and in confining himself only to the position as obtaining in January 1995. Apparently, (since there is no other reason appearing from the discussion in his findings) having himself issued the SCN, the learned Adjudicating Officer felt himself obliged to sustain the charge made therein. That has apparently led to the passing of the impugned order. Thus, he erred in confining his consideration to the documents and statements, based on which the show-cause notice was issued and shutting out further evidence that was available on record and ignoring the provisions of sub-rule (5) of rule 3 which obliged him to consider th....