2014 (2) TMI 1441
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....f Enforcement Officer vide file No. T-3/138-V/2001/SKS/2006. In response to the said summons, the Chairman and Managing Director of the appellant company personally met Deputy Director, Enforcement Directorate in the presence of Chief Enforcement Officer and Enforcement Officer. It was communicated by the said officers that the RBI had reported to them that the appellant company had remitted certain amounts abroad for importing some equipments but those equipments were not imported and enquired about the matter. The Chairman and Managing Director of the appellant company personally apprised the officers about the facts and later submitted all the documents, including the entire correspondence vide letter dated 24-01-2001. 3. Thereafter, the appellant company received two show-cause notices vide No. T- 4/1005/8/DD/VS/BE/2002 dated 16-05-2002 (in short first SCN) issued by the Deputy Director and vide No. T-4/92-B/SDE/AKB/2002/3991 dated 20-05-2002 ( in short second SCN) issued by the Special Director. It has been alleged in the first SCN that the appellant company remitted foreign exchange equivalent to Indian Rs. 71,80,500/- for imports of goods but the appellant company failed to....
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....d SCN. But by the impugned order No. ADJ/416/DD(AKL)/B/2004/4829, dated 31-03-2004 (the impugned order) the Deputy Director has imposed penalty of Rs.18.00 lakh on the appellant company against which the present appeal No.623/2004 has been filed. 7. The ld. Counsel Ms. Rachana Srivastave appearing for the appellant has assailed the impugned order imposing the penalty of 18 lakh in respect of two remittances being bad amounting to double jeopardy. She has further submitted that two remittances regarding which the penalty has been imposed by the impugned order are included in the second SCN which was issued in respect of nine remittances which have also been adjudicated upon by order No. ADJ/365/B/SDE/AKB/2003/6033/6034, dated 14-8-2003. The adjudicating proceedings have come to an end with the final order passed by the Hon'ble High Court of Bombay in FERA appeal No. 49/2008 and FERA Appeal No. 50/2008 on 16-10-2008. She has also submitted that the respondent has tried to mislead. The alleged contravention in respect of the two remittances involved in the impugned order under section 8(3) and 8(4) of FERA has the value as mentioned in the first SCN in the Indian rupees only deli....
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....ount. If the earlier appeal filed by the Petitioner i.e. appeal No. 379 of 2003, has not yet been disposed of, the present appeal i.e. appeal No. 623. of 2004 will also be listed along with the said appeal and be heard together." 8. While hearing the appeal on merits this Tribunal, after perusal of records and in the light of the above and after considering the submissions of the Ld. Counsel for the appellant and Ld. ALA for the respondent, is of the view that the Ld. Deputy director in the impugned order has not raised any issue regarding these two entries of remittances being common in the first and second SCNs. It appears to this Tribunal that this issue in respect of the fact is essential to be considered and determined for the right decision of the appeal on merits. As such it is necessary to frame this issue and to consider evidences relating thereto as produced by the parties. For this purpose, it would be appropriate that this issue is framed by this Tribunal and remanded to the Ld: Deputy Director for trial, against whose impugned order this appeal is preferred. 9. Regarding power of this Tribunal to remand back the matter, the Hon'ble Delhi High Court in the case of....
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....Apex Court clearly held that the Appellate Authority under the Customs Act under Section 128(2) of the Customs Act (as it then stood) was fully vested with the power to pass such order which included the power to remand the matter. The relevant para of the said decision is referred as under- "The then Judicial Commissioner, Goa, Daman and Diu, took the view that Section 128(2) of the Customs Act, 1962, as it then read, did not vest the appellate authority with the power to remand. Accordingly, he set aside such order and the Revenue is in appeal. As the order under appeal itself notes, the aforesaid provision vested the appellate authority with powers to pass such order as it deemed fit confirming, modifying or annulling the decision appealed against. An order of remand necessarily annuls the decision which is under appeal before the appellate authority. The appellate authority is also invested with the power to pass such order as it deems fit. Both these portions of the aforesaid provision, read together, necessarily imply that the appellate authority has the power to set aside the decision which is appeal before it and to remand the matter to the authority below for fresh decis....