IMPORTANT POINT
The Adjudicating Authority is not a 'persona designata' and can be succeeded by another authority within the same office. The notification revising pecuniary jurisdiction empowered the Additional Director to conduct the adjudication proceedings, superseding the authority of the Special Director who issued the show cause notice.

JUDGMENT :

Sanjay V. Gangapurwala, J.

(Prayer: Appeals under Clause 15 of the Letters Patent against the common order dated 5.1.2024 made in W.P.Nos.13268 and 13276 of 2020 by the learned Single Judge.)

1. Calling into question the judgment and order dated 5.1.2024 passed by the learned Single Judge, the unsuccessful writ petitioners have filed these appeals.

2.1. The facts leading to the filing of these appeals, in a nutshell, are as follows: On the basis of a complaint dated 29.1.2018 lodged under Section 16(3) of the Foreign Exchange Management Act, 1999 [for brevity, “the Act of 1999”] by the Assistant Director, Directorate of Enforcement, Hyderabad, the Special Director, Directorate of Enforcement, Southern Regional Office, Chennai, issued a show cause notice dated 23.2.2018 to the appellants under Section 7 of the Act of 1999 read with Regulations 8, 9(1) and 13 of the Foreign Exchange Management (Export of Goods and Services) Regulations, 2000 for non-repatriation of the export proceeds.

2.2. Subsequent to the issuance of the show cause notice, the Assistant Director (SRO), Directorate of Enforcement, Southern Regional Office, Chennai, vide letter dated 6.2.2020, directed the appellants to appear on 19.2.2020 before the Additional Director for adjudication proceedings. Thereafter, the appellants sought further time and copies of the documents relied upon by the respondents. There was exchange of communication between the parties and, ultimately, by the notice dated 9.9.2020 issued by the Assistant Director (SRO), Directorate of Enforcement, Southern Regional Office, Chennai, the appellants were required to be present for hearing on 23.9.2020 before the Additional Director, Directorate of Enforcement.

2.3. It is the case of the appellants that the show cause notice having been issued by the Special Director, Directorate of Enforcement, he is “the Adjudicating Authority” and the further proceedings are required to be conducted by him alone and not by the Additional Director. Therefore, the appellants filed writ petitions, inter alia, praying for issuance of a writ of certiorari and seeking quashment of the notice dated 9.9.2020.

2.4. The learned Single Judge dismissed the writ petitions holding that the case was transferred from the Special Director to the Additional Director in view of the enhancement of pecuniary jurisdiction and the same is well within the provisions of the Act of 1999. Aggrieved thereby, the present appeals.

3.1. Mr.Jayant Mehta, learned Senior Counsel appearing on behalf of Mr.B.Thiyagarajan, learned counsel for the appellants, eruditely canvassed his submissions. He submits that by virtue of Rule 4(3) of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000, [for brevity, “the Rules of 2000”], the authority who issues the show cause notice under Rule 4(1) of the Rules of 2000 alone is competent to adjudicate the case of the appellants. In the case on hand, the show cause notice was issued by the second respondent/Special Director and, hence, no other authority can adjudicate the case of the appellants.

3.2. Learned Senior Counsel for the appellants further submits that the notification dated 27.9.2018 issued by the Central Government exercising the power under Section 16 of the Act of 1999, revising the pecuniary jurisdiction of the Officers of the Enforcement Directorate and transferring the cases is prospective in nature, but in the case on hand the said notification is given retrospective effect. He pointed out that the Special Director issued notice way back on 23.2.2018, to wit, prior to the issuance of notification revising the pecuniary jurisdiction, and hence the savings clause contained in the notification to the effect that “except as respects things done or omitted to be done before such supersession...” comes to the aid of the appellants.

3.3. Learned Senior Counsel