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DELHI HIGH COURT
Mukta Gupta, J.
Ruchi Soya Industries Ltd —Petitioner
versus
Asstt. Director, Enforcement of Directorate —Respondent
Crl. M.C. No.848 of 2010
Decided on 17.12.2014
For the Petitioner:Mr. G.L.Rawal, Sr.Advocate with Mr.Rajesh Rawal, Jagjit Singh and Mr.Saurabh, Advocates
For the Respondent:Ms.Rajdipa Behura, Advocate
IMPORTANT POINT:
Every Tribunal was inherent jurisdiction to correct any error committed by it so that justice is done to both assessee and the revenue but review does not confer power to re-hear matter on merits.
Headnote:Foreign Exchange Regulation Act, 1973 — Section 51 — Adjudication proceedings review jurisdiction of Tribunal — Order imposing penalty on petitioner — Petitioner filed appeal and prayed for waiver of pre-deposit of 50% of penalty amount — Appellate authority directed deposit of 50% of impugned penalty — Petitioner moved petition for recalling of order — Appeal and application were finally dismissed when on the date of hearing no one appeared for appellant — Petitioner moved application for recalling or order by review — Appellate authority by majority order dismissed the petitioner — Since application seeking review but a review on merits, no illegality in order and no interference was warranted.
Held: The decision in Ram Kirpal vs. Union of India, 1998 (103) E.L.T. 8 (Guj.) relied upon by the Petitioner dealt with the inherent jurisdiction of every Tribunal to correct any error committed by it so that justice is done both to the assessee and the revenue. It drew a distinction between the procedural review and a review on merits and held that review does not confer power to re-hear matter on merits. There is no dispute to the propositions laid down in the decisions cited by the learned counsel for the Petitioner however, suffice it is to state by the application on which the impugned order dated 11th November, 2009 was passed by a majority opinion, the Petitioner had not sought a procedural review but a review on merits as the appeal and application were not dismissed on the ground of the petitioner’s counsel not being available but on merits after perusing the material available vide order dated 23rd May, 2008.
During the course of arguments learned counsel for the Petitioner has strenuously stated that in his written submissions he agreed to make 50% pre deposit and sought time to deposit. These written submissions stated to be filed by the Petitioner on 15th September, 2009 are not on record of the Tribunal. However, in view of the endorsement even if it is accepted that the written submissions in para-7 submitted that without prejudice to the submissions the Petitioner herein prayed for time of two months to comply with the order dated 12th February, 2004, the same would not enure to the benefit of the Petitioner in as much as this alternate submission of depositing the amount was not taken when the application for withdrawal of the direction of pre-deposit was being considered.
I find no merit in the petition. The same is dismissed. (Paras 5 to 7)
Result: Petition dismissed.
JUDGMENT
Mukta Gupta, J.—The present petition is directed against the order dated 11th November, 2009 whereby the review petition filed by the Petitioner herein was dismissed.
2. The backdrop of the facts being that an Import License was issued for import of Tin Plates to the Petitioner, which was imported and foreign exchange so allocated was utilized on establishing Letter of Credit in favour of the foreign suppliers and imported 94.025 MTs of Tin Plates from Brazil. The imported goods were cleared from the Customs on or about 25th March, 1995 on payment of duty. The documents of import were sent by the foreign suppliers through bank and the same were released to the Petitioner by the Bank on acknowledgement of Letter of Credit issued by the State Bank of Hyderabad in 1995 itself. A show cause notice was issued to the Petitioner by the Respondent alleging that the foreign exchange allocated against the said license having not been utilized why adjudication proceedings under Section 51 of Foreign Exchange Regulation Act, 1973 (in short ‘FERA’) read with Section 8 (3) and (4) of Foreign Exchange Management Act, 1999 (in short ‘FEMA’) be not held against the Petitioner.
3. The Adjudicating Authority passed the order on 27th August, 2003 imposing a penalty of Rs.28,26,000/- on the Petitioner. Aggrieved by the said order the Petitioner filed an appeal before the Respondent No.2 along with an application seeking waiver of the pre-deposit of the penalty amount. The Respondent No.2 directed the Petitioner to deposit 50% of the penalty amount within three months vide order dated 12th February, 2004. Much beyond three months having elapsed, on 13th October, 2004 the Petitioner filed an application for withdrawal of the order dated 12th February, 2004 with a request by the Petitioner to afford re-hearing in the matter afresh. On 23rd May, 2008 the appeal was posted for hearing however, the appeal and application were dismissed as the Petitioner was not represented considering the material available on record. The Petitioner filed an application seeking withdrawal of order dated 23rd May, 2008 inter alia submitting that the counsel who came to attend the matter fell sick and thus could not appear in time on the said date and thus the application and appeal had been dismissed. The two members of the Respondent No.2 opined differently and thus the matter was referred to the third Member. On 11th November, 2009 by majority order, the review petition filed by the Petitioner was dismissed in accordance with Section 52 (6) of FERA.
4. Learned counsel for the Petitioner relying upon the decision in Minas Minerais De Goa Pvt. Ltd. vs. Union of India and others, W.P. (C) No.7736/2009 decided on 28th July, 2009 seeks to draw a distinction between a power of procedural review and a review on merits and contends that the power of procedural review is an inherent power and need not be specifically conferred by a statute. To ascertain whether it was a procedural review sought or a review on merit it would be necessary to consider the order dated 23rd May, 2008 review of which was sought by the Petitioner. Vide order dated 23rd May, 2008 when the appeal filed by the Petitioner and the application seeking withdrawal of the direction dated 12th February, 2004 of pre-deposit of penalty amount came up for hearing and the counsel for the Petitioner was not available the Tribunal passed the following order; even in the absence of the counsel for the Petitioner, considering the merits of the matter:
“The following order is delivered by Km. Vijay Laxmi, Member, Appellate Tribunal for Foreign Exchange:
2. This appeal is filed against Adjudication Order No.ADJ/1013/AD (PKB)/B/2003 dt. 27.08.03 passed by Asst. Director Directorate of Enforcement, Mumbai imposing a penalty of Rs.28,26,000/- (Rupees twenty eight lakhs twenty six thousand only) against M/s Ruchi Soya Industries Ltd. for contravention of the provisions of Section 8 (3) & 8 (4) of FERA, 1973 for no
