TaxTMI 
TaxTMI 
2026 (7) TMI 243
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....eference was made to the Reserve Bank of India, Kolkata and in reply, the RBI, vide letter dated 28/08/2001, intimated that the performance of M/s. Uniworth International Ltd., is highly unsatisfactory. RBI also forwarded details of Guaranteed Remittance (GR-1) forms against which export proceeds were pending realization by M/s Uniworth International Ltd. It was also informed by the RBI that the documents were negotiated by the exporter (M/s. Uniworth International Ltd.) through Canara Bank, Punjab National Bank, Punjab & Sind Bank, Centurian Bank, Indusind Bank and HSBC Bank. RBI also informed that exporter's sister concerns M/s. Uniworth Ltd. and M/s. Uniworth Textiles Ltd. have also huge outstanding of export proceeds over Rs.260 Crores (approx.). However, in the present case, we are only concerned with the export proceeds pending realization by M/s. Uniworth International Limited. 3. The business premises of the company situated at 70A, Shakespeare Sarani, Kolkata-700017 was searched on 14/09/2001 which resulted in the seizure of certain documents. 4. In his statement dated 14/09/2001, Shri Sunil Kumar Mall, inter-alia, stated that he was the General Manager of M/s. U....
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.... Euro 84909.84 were pending realization; • The Indusind Bank vide letter dated 23/08/2010 furnished details of 32 GR-1 forms against which export proceeds were pending realization. 9 GR-1 forms out of 32 GR-1 forms relate to exports 01/06/2000 against which export proceeds totalling to GBP 9514.73 and Euro 764415.68 was pending realization; • The Centurion Bank furnished details of 11 GR-1 forms against which export proceeds were pending realization. 8 GR-1 forms out of 11 GR-1 forms relate to exports after 01/06/2000 against which export proceeds totalling to Euro 755548.75 and GBP 62998.22 was pending realization. 9. The bankers vide their aforesaid letters confirmed that there was nothing on record to indicate that M/s. Uniworth International Ltd. had taken effective steps to realize export proceeds totalling to Euro 1881791.31, F.F. 466209.00, Pound 99522.95 and US$ 198120.97 and repatriate to India full export proceeds from their overseas buyers. 10. Shri Ajey Prakash Lohia, Shri M.L. Pamecha, Shri N. Sitaraman, Shri Tolaram Jalan, Shri Krishnamurti Srinivasan, Shri Kishore Jhunjhunwala, Shri Santosh Kr. Jain, Shri M.K. Darbari, Shri Anand Gopal....
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....herwise appellant was never responsible for day-to-day affairs of the company. 16. It is also argued that the impugned order has been passed without providing copies of the GR1 forms, mentioned in the Complaint. 17. It is further argued that the impugned order has been passed after taking into consideration letters dated 30.05.2018 of the respondent addressed to IndusInd Bank and reply of the bank dated 28.09.2018. Letter dated 30.05.2018 addressed to Punjab and Sind Bank and reply of the bank dated 14.09.2019. Letter dated 30.05.2018 addressed to Centurian /HDFC bank and their reply dated 03.10.2018 and letter dated 30.05.2018 addressed to HSFC Bank and their reply dated 03.10.2018. All the said communications have been made after issuance of the SCN on 02.12.2011. None of these documents were supplied to the appellant and the adjudicating officer took into consideration the said documents while passing the impugned order thereby preventing the appellant to defend the matter. 18. It is also argued that the impugned order has been passed without taking into consideration that the Reserve Bank of India vide its letter dated 11.06.2002 (Annexure A4 of Appeal) has agreed in p....
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....ings were conducted in violation of principles of natural justice is incorrect. A detailed Show Cause Notice was served upon the appellant and sufficient opportunities of personal hearing were granted. The reply and submissions filed by the appellant were duly considered by the Ld. AA. However, mere rejection of the explanation furnished by the appellant cannot be treated as non-consideration. 28. It is also argued that once reasonable opportunity has been granted, the authority is justified in proceeding further in accordance with law, including passing an ex-parte order where the party fails to effectively participate. 29. It is submitted on behalf of the respondent that the contention that the appellant cannot be held liable due to resignation dated 29.03.2001 is untenable. The contraventions relate to non-realisation of export proceeds and non-submission of GR-I forms during the period when the appellant was admittedly a director. Subsequent resignation cannot wipe out liability arising from acts or omissions committed during the period of directorship. 30. It is also submitted that the plea that the appellant was not involved in day-to-day affairs is merely an asserti....
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....g non-payment of imports is irrelevant for determining the contravention relating to non-realisation of export proceeds. 40. It is further submitted that export realisation and import payment obligations are separate statutory requirements and failure in one area cannot justify breach in another. 41. It is submitted on behalf of the respondent that pendency of civil proceedings before the Hon'ble Calcutta High Court does not affect the jurisdiction of the FEMA authorities. FEMA proceedings are independent statutory proceedings and cannot be stalled in absence of any specific stay order. 42. It is argued that the allegation that the impugned order is unreasonable or perverse is without merit. 43. It is further submitted that the findings are based on documentary evidence and the penalty has been imposed within the statutory framework after considering the facts and circumstances of the case. 44. Based on the above submissions, it is argued on behalf of the respondent that the present appeal be dismissed. Analysis, Findings & Order 45. I have considered carefully the rival submissions on behalf of the parties and perused the material on record. It is the case of ....
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....day affairs of the company's business and other directors who are not. In Raman Narula vs. Director (2014) 216 SCL 120 (Del) it was held that where no factual basis was laid by the Directorate for alleging that the noticee was in-charge of and responsible to the company for conduct of its business, he could not be held vicariously liable for the alleged contravention by the company. In Sayed Wahid vs. Director of Enforcement (1988) 37 Taxmann 16 (FERAB), it was held that unless the department discharges the burden of inter alia proving that the person vicariously charged with the contravention was in charge and was responsible to the company for the conduct of its business, the action under Section 42 (1) would be void ab initio. 47. As against the above legal position, in the present case it is an admitted fact, clearly mentioned in the impugned order, that in the complaint filed before the Ld. Adjudicating Authority, the roles of the respective directors were not mentioned. The relevant paragraphs of the impugned order which occurs under the broad heading "FINDINGS" is as follows: "Role of Individual noticees other then the company (Noticee No. I) I find that....