FPA-FE-175/KOL/2003 of Shri Anoop Kumar v/s The Special Director Directorate of Enforcement, Kolkata

ATFP5 Sept 2019FPA-FE-175/KOL/2003

Case brief

AI extract

What is this about?

Mishra J, without appearing counsel for the appellants, noted repeated adjournment requests. He expressed dissatisfaction with the appellants' conduct, granted a final adjournment to 13.09.2019, and directed the registry to provide documents to the respondent.

What did the court decide?

Adjournment granted to 13.09.2019 as the last chance; registry directed to provide documents to respondent.

FPA-FE-175/KOL/2003 of Shri Anoop Kumar v/s The… — Civil Procedure and Limitation | ATFP (2019)

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APPELLATE TRIBUNAL, FOREIGN EXCHANGE MANAGEMENT ACT AT NEW DELHI

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1. FPA-FE-175/KOL/2003 Shri Anoop Kumar	…	Appellant
Versus
The Special Director
Directorate of Enforcement, Kolkata	…	Respondent
&
2. FPA-FE-176/KOL/2003
M/s. SSK Exports Ltd.	…	Appellant
Versus
The Special Director
Directorate of Enforcement, Kolkata	…	Respondent

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Advocates/Authorized Representatives who appeared

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For the Appellants	: None
For the Respondent	: Ms. Divya Jauhri, Legal Consultant
CORAM
SHRI G. C. MISHRA	: MEMBER

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ORDER 05.09.2019

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FPA-FE-175/KOL/2003 & FPA-FE-176/KOL/2003

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None appears for the appellants. An adjournment letter dated 31.08.2019 sent by the appellants is received in this Tribunal on 03.09.2019. The contents of the letter dated 31.08.2019 are reproduced below:

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“ The above two appeals are fixed for hearing on 05.09.2019. Our Ld. Advocate Mr. Sudhir Kumar Mehta has fallen sick and he is not in a position to attend the hearing on 05.09.2019.

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Therefore we request that the hearing may be adjourned till suitable as tribunal may deem fit and proper.

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In the event adjournment is declined, we have filed two written submissions in detail, which may be considered for denovo hearing of appeal.

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We shall be grateful if we are informed of the next date of hearing. ”

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FPA-FE-175/KOL/2003

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& FPA-FE-176/KOL/2003

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Page 1 of 5

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This matter is transferred to the file of the undersigned after the retirement of the former Member on 23.08.2019 and for the first time these appeals are coming on board before the undersigned.

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Prior to this date, the matter was fixed on 23.04.2019, an adjournment letter dated 18.04.2019 was sent by the appellants which was received in this Tribunal on 22.04.2019. The contents of the letter dated 18.04.2019 are reproduced below:

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“ We are in receipt of the notice of hearing of appeal on 16.04.2019 informing us that the hearing of appeal has been fixed on 23.04.2019.

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We seek a suitable adjournment in as much as we received the notice on Tuesday and there after Friday, Saturday and Sunday being the holidays, we could not make arrangements of the counsel because of paucity of time.

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We therefore request you to place this letter before the Hon’ble Bench for necessary adjournment.

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In the event adjournment is declined, we have filed two written submissions in detail, which may be considered for denovo hearing of appeal.

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In as much as the entire order has been set aside by the Hon’ble Calcutta High Court, the connected appeal also need to be heard together. But it does not appear to be so from the notice received by us.

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We shall be grateful if we are informed that the appeal would be ready for hearing with record on the next date fixed. ”

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Ms. Divya Jauhri, Legal consultant appeared for the

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Respondent/Enforcement Directorate, submitted that she has been engaged recently and has no file. She has requested for the copies of the appeals memos and relevant documents.

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It is necessary to bring the following facts for the purpose of record:

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These appeals were disposed of by the learned former Member on 27.11.2018. It appears that being aggrieved with the aforesaid order, the appellants preferred an appeal bearing No. FEA No. 1 of 2019 along with the stay application bearing GA No. 90 of 2019 before the Hon’ble Calcutta High Court. There Lordships of Hon’ble High Court, Calcutta, has quashed the order dated 27.11.2018, the contents of which are reproduced below:

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FPA-FE-175/KOL/2003

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& FPA-FE-176/KOL/2003

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Page 2 of 5

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“ The Court : We have perused the impugned order of the tribunal dated 27^th November, 2018. It appears from the records that 15 containers of tea were sought to be exported by the appellant from this country to Moscow in 1997 under the Rupee Credit Scheme. Under this scheme, the export had to be made solely to Russia. The, charge of the respondent authorities against the appellant was that the goods never reached Moscow but were unloaded at Dubai. However, the benefit of the scheme was availed of by the appellant.

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We regretfully say that the learned Tribunal has not addressed the issues before it in an intelligible manner. Neither is there any clearcut finding of fact implicating the appellant with specific violation of the Foreign Exchange and Regulation Act, 1973. We have no doubt in our mind that the tribunal has made a sincere effort to determine the case. But unless the findings with regard to the imputation in the show cause are clearcut and specific it becomes hard for a superior court to support the order of the tribunal. For example, look at these findings in paragraph 7 of the tribunal’s order :

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“However, the goods were actually off loaded and delivered to a party at Dubai without any change in the B/L which would tantamount to non-production of the required B/L. The shipping line and its officials cannot therefore absolve themselves of their responsibilities and mandatory duty and where as much responsible for the contravention as the exporter themselves. Whether there was any collusion/abatement or not between the shippers and the exporter or whether there was any mala fide in the actions of the appellants by offloading at Dubai by underhand dealings in hard currency is not gone into since the investigations and the adjudication orders do not throw up any conclusive issue in this regard.”

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It is quite plain that the consequences of unloading the goods at Dubai instead of Moscow has not been analyzed at all. Furthermore, how important were the alleged underhand dealings and the collusion abetment etc. attached to them and their overall impact on the proceedings against the appellants were also not discussed.

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This kind of an order lacking in proper analysis of issues and proper findings give rise in our opinion to a substantial question of law. But since substantial questions of facts are involved, this Court will refrain from adjudicating upon the issues.

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In the circumstances, we set aside the order of the tribunal dated 21^st November, 2018 and remand the matter back to it for a de novo adjudication with reasons upon hearing the parties within six months of communication, of this order .

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The appeal (FEA No. 1 of 2019) along with the stay application (GA No. 90 of 2019) is disposed of. ”

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The bold and underlined portion has been done by the undersigned.

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This Tribunal received a communication from the Assistant Director

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(PRC), Office of the Special Director, Eastern Region, Directorate of Enforcement, Kolkata vide their letter in F. No. : T- 5/136/Kol/FERA/2003/1910-11 dated 25.03.2019 on 28.03.2019. Accordingly, the matter was listed on 23.04.2019 before the Court No. 2

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& FPA-FE-176/KOL/2003

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FPA-FE-175/KOL/2003

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Page 3 of 5

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presided over by the learned former Member who passed that impugned order dated 27.11.2018. Neither of the parties nor their counsels appeared on 23.04.2019 rather this Tribunal has received an adjournment letter dated 18.04.2019 (supra) seeking another date. Accordingly the appeals were adjourned to 05.09.2019 i.e. today. In the meantime, her tenure as Member of this Appellate Tribunal expired on 23.08.2019 so the appeals are listed before the undersigned for the first time as all the cases that were allotted to the learned former Member have been transferred to the file of the undersigned.

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Today none appeared for the appellants rather another letter of adjournment dated 31.08.2019 is received in this Tribunal on 03.09.2019 seeking another date on the ground stated in their said letter, the contents of which are already reproduced above.

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The conduct of the appellants is not appreciated. They are not cooperating with this Tribunal knowing fully well that the Hon’ble Calcutta High Court has stipulated time for disposal of the appeal afresh upon hearing the parties within six months of communication of the Hon’ble Calcutta High Court’s Order.

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Since, the communication was received on 28.03.2019, six months time is expiring on 27.09.2019. The undersigned is getting only 22 days for de novo adjudication by hearing the parties, to go through the documents and to take decision.

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In the absence of co-operation from the parties it would not be possible to comply the order since the Hon’ble Calcutta High Court has specifically directed to decide the appeals de novo upon hearing the parties. It is necessary on the part of the appellants as well as the respondents to personally appear or appear through their counsels to argue the matter.

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Keeping in view of availability of limited period, only a short adjournment, as last chance, is granted to the parties to appear and argue the matter on 13.09.2019. The request of the learned counsel for the

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FPA-FE-175/KOL/2003

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& FPA-FE-176/KOL/2003

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Page 4 of 5

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respondent to provide her the copy of the appeals memos and other relevant documents in both the appeals, in the interest of justice, is allowed. The Registry is directed to provide the said documents to her as per procedure and rules.

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In the circumstances, list these matters on 13^th September, 2019 as the last chance. No further adjournments would be given on any term and the matter will be decided as per the directions of the Hon’ble Calcutta High Court. If any of the party or parties do not want to argue, or needs time to argue than they may move the Hon’ble Calcutta High Court for extension of time.

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Both the appellants as well as respondent be informed with a copy of this order through Fax, E-mail and by Speed Post today itself for the appearance and hearing.

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List on 13^th September, 2019.

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(G. C. Mishra) Member

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New Delhi, 05^th September, 2019

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‘AS’

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FPA-FE-175/KOL/2003 & FPA-FE-176/KOL/2003

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Page 5 of 5

FPA-FE-175/KOL/2003 of Shri Anoop Kumar v/s The Special Director Directorate of Enforcement, Kolkata

Case brief

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FPA-FE-175/KOL/2003 of Shri Anoop Kumar v/s The Special Director Directorate of Enforcement, Kolkata

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