Dismissed

FPA-FE-27/KOL/2014 of M/s. Dinmay Exim Avenue (P) Ltd. v/s The Special Director Directorate of Enforcement, Kolkata

ATFP18 Oct 2017FPA-FE-27/KOL/2014

Case brief

AI extract

What is this about?

The Appellate Tribunal dismissed an application for review and condonation of delay under Order XLVII Rule 1 CPC, holding that the earlier consultation order had become final and the applicant could not re-agitate merits.

What did the court decide?

Review application filed by the appellant along with application for condonation of delay was dismissed as not maintainable.

FPA-FE-27/KOL/2014 of M/s. Dinmay Exim Avenue (P)… — Civil Procedure and Limitation | ATFP (2017)

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APPELLATE TRIBUNAL, FOREIGN EXCHANGE MANAGEMENT ACT

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AT NEW DELHI

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Dated: 18.10.2017

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FPA-FE-27/KOL/2014

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M/s. Dinmay Exim Avenue (P) Ltd.	…	Appellant
FPA-FE-28/KOL/2014
Roshni Rawat	…	Appellant
FPA-FE-29/KOL/2014
Dinesh Chandra Rawat	…	Appellant

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Versus

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The Special Director Directorate of Enforcement, Kolkata … Respondent

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Advocates/Authorized Representatives who appeared

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For the appellant : Mr. J.K Srivastava, Advocate For the respondent : Mr. Prashant Pandey, Legal Consultant CORAM JUSTICE MANMOHAN SINGH : CHAIRMAN SHRI ANAND KISHORE : MEMBER

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JUDGMENT

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Misc. Application 14/2016 in FPA-FE-27, 28 and 29/KOL/2014

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By this order we propose to decide the Miscellaneous Application No. 14 of 2016 in Appeal No. 27 of 2014. The present application on various grounds are taken by the Appellant / Applicant stating that in the impugned order dated 5^th July, 2016 the Tribunal did not discuss the prima-facie case which were initial ingredient for deciding the Stay Application. The judgments have also not been properly discussed and it

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FPA-FE-27-29/KOL/2014

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Page 1 of 4

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has wrongly come to the conclusion that the said judgments are applicable to the present case. The various contentions have been raised by the learned counsel for the Appellant/Applicant.

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We have gone through the impugned order dated 16^th July, 2016 where in the application for Stay was decided. It appears to us that in the said order all the aspects raised by the parties have been discussed. The relevant aspect of Para- 9, 10, 11 and 12 are as under:

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“9. We have considered the submissions of Ld. Advocate for the applicants/appellants and the Ld. Legal Consultant and have perused the record carefully. The question, whether the applicants/appellants (notices No. 1 to 3) have contravened the provisions of Section 7 and 8 of Foreign Exchange Management Act. 1999 read with Regulation Nos. 8, 9 and 13 of FEMA (Export of Goods and Services) Regulations, 2000 and also read with Section 42 of Foreign Exchange Management Act, 1999 or not; whether the applicants/appellants have made all reasonable steps and took all possible efforts to realize the proceeds of exports or not; whether the company and its directors are liable for imposition of penalty; whether the evidence adduced by the E.D is sufficient for proving contraventions or not; whether any contraventions occurred of the provisions of FEMA by the appellants or not are some of the issues which require in depth scrutiny. We are refraining from recording any finding on these issues lest it may influence the final outcome.

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10. In view of the above discussions and without expressing any opinion on the merits of the case, at this stage. We are of the view that it will be fair just and proper that the applicants/appellants be allowed partial waiver as no case of complete waiver is made out on the basis of case laws. Benara Valves Ltd. Vs Commissioner of Central Excise (2006) 13 SCC 347, Monotosh Saha Vs. Special Director, Enforcement Directorate, (2008) 12 SCC 359 and Nimesh Suchde Prop. Sidharth Polymers Vs. Union of India, (2011) 107 S C L 183 (Delhi).

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11. Keeping in view the above mentioned facts and the case laws, we are of the opinion that the ends of justice will be met, if the appellant company is directed to deposit Rs. 10,00,000/- (Rs. Ten Lakhs) out of the amount of total penalty imposed against it and rest of the appellants in Appeal No. 28 and 29 of 2014 are directed to deposit Rs. 5,00,000/- (Rs. Five Lakhs) each out of the amount of total penalty imposed

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FPA-FE-27-29/KOL/2014

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Page 2 of 4

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against them through the Impugned Order within 30 days from the date of communication of this order and all the applicants/appellants further furnish reliable security for 20% of the amount of total penalty imposed against each of the applicants/appellants within the same period.

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12. The applications for stay and waiver from pre-deposit of penalty amount are disposed of with the direction that the recovery of the amount of penalty imposed through the Impugned Order shall remain stayed till the disposal of the appeals provided the applicant/appellant company deposits Rs. 10,00,000/- (Rs. Ten Lakhs) out of the amount of total penalty imposed against it and the applicants/appellants in Appeal No. 29 & 29 of 2014 deposit Rs. 5,00,000/- (Rs. Five Lakhs) each out of the amount of total penalty imposed against each of them through the Impugned Order within 30 days from the date of communications of this order and all the applicants/appellants further furnish reliable security for 20% of the amount of total penalty imposed against each of the applicant/appellants within the period. No order as to costs. List on 20.09.2016 for reporting compliance. ”

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The learned counsel for the Appellant is trying to re-argue the matter on merits and is trying to re-agitate the same plea which were raised at the time of deciding the said application. The question before us as to whether the review filed by the appellant is maintainable or the party is allowed to re-agitate the same issue on merit at the time of the case as well as the impugned order dated 16^th July, 2016.

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It is pertinent to mention that the order dated 16.07.2016 has not been challenged by the appellant/applicants in the higher court. It has become final. The amount fixed in the said order has not been deposited and it is apparent that the appellants have no intention to deposit the same.

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We are of the view that the review application filed by the appellant/review applicant is not maintainable as the applicant has failed to demonstrate any error apparent on the face of the record on the

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FPA-FE-27-29/KOL/2014

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Page 3 of 4

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order passed by this court and is trying to re-argue its case as if it was an appeal which is beyond the scope of the Order XLVLL Rule 1 CPC and as such the review application is liable to be dismissed. The Apex Court in the case of K.A. Ansari and Anr. Vs. Indian Airlines Ltd . (2002) 2 SCC 164 in Para 17 was pleased to hold that an application for review cannot be entertained only for the purpose of rehearing of the case. The Apex Court further held in the case of The State of West Bengal and

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Ors. Vs. Kamal Sengupta and Anr. (2008) 8-5 E.C-612 that the application of review cannot be entertained merely because a different view could have been taken by the Court. The Apex Court was further pleased to hold that while dealing with the application of review, the Court cannot sit as a court of appeal.

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