ORDER

19.12.2024

This Order disposes of the prayers of the Appellants Shri Bharatlal Agarwala and Shri Omendra Kumar Chowdhury in Appeals No. FPA-FE- 01/KOL/2019 and FPA-FE-05/KOL/2019 to dispense with the pre-deposit of penalty amounts of Rs. 5,00,000/- on each of the Appellant imposed vide the Adjudication Order No. 01/FEMA/ 2015-16/JD(SDC) dated 10.02.2016. The Adjudication Order was passed by the Joint Director, Enforcement Directorate, Kolkata.

2. Ld. Counsel for the Appellants argued at length for waiver of pre- deposit of penalty in the aforementioned two Appeals. He stated that the impugned Adjudication Order No. 01/FEMA/2015-16/JD(SDC) dated 10.02.2016 and the related Show Cause Notices have no legal basis. The Appellants were found to be in contravention of the charges under Section 3(a) and 3(d) read with Section 39 of the Foreign Exchange Management Act, 1999 (“FEMA”), and accordingly the penalties of Rs 5,00,000/- (Rs. Five Lakhs Only) were imposed on each of the two Appellants herein.

3. The Ld. Counsel for the Appellants stated that Shri Bharatlal Agarwala was engaged in running a STD Booth under the name and style of M/s. Biswa Lakshmi Communication. The Appellant was also carrying import- export business under the name and style of MDB Enterprise, wherein he was one of the partners of the said firm. The officers of the Respondent Directorate visited the Appellant’s STD Booth on 17.05.2006 on receipt of information that the Appellants were engaged in unauthorized transactions in foreign exchange and transfer of funds outside India. The Respondent Directorate recovered one loose sheet which contained a series of numbers and names, from the premise. The officers also visited the premises of the Appellant Sh. Omendra Kumar Chowdhury, another partner of M/s. MDB Enterprise but nothing incriminating was found from his premises.

3. Ld. Counsel for the Appellants further stated that the recovered documents were subsequently forwarded to the Government Examiner of Questioned Documents, Directorate of Forensic Sciences, Ministry of Home Affairs, Govt. of India, Kolkata. The Govt. Examiner of Questioned Documents vide its letter/report dated 10.07.2006 confirmed that the author of the account sheets are one and the same and all these documents are in the handwriting of the Appellant Shri Bharatlal Agarwala.

4. Ld. Counsel for the Appellants argued that based on the facts and legal issues raised, there is a prima-facie case in favour of the Appellants. Ld. Counsel stated that the Appellants had denied the factum of recovery of the documents and had repeatedly expressed their inability to explain the documents to the Respondent Directorate. Apart from the report of the handwriting expert, there is no evidence that the Appellants herein have contravened the provisions of the FEMA, 1999. Ld. Counsel stated that the Appellants dispute the correctness of the opinion of the Government Examiner of Questioned Documents. Ld. Counsel argued that the Appellants never dealt with any transaction in foreign exchange with any person nor had they entered into a transaction in India with any unauthorized persons. Ld. Counsel placed reliance on Indu Nishan Auxo Chemicals Industries Ltd. vs. Union of India, 2008 (221) ELT 7 (SC); Northern Doors (P) Ltd. vs. Commissioner of Central Excise, Kanpur, 2005 (182) ELT 450 (All) in support of his contention.

5. Ld. Counsel for the Appellants argued that the Impugned Order is not maintainable as it was in breach of the Principles of Natural Justice, as the Appellants were denied the opportunity to cross- examine the Government Examiner of Questioned Documents (handwriting expert). Ld. Counsel has placed reliance on Andaman Timber Industries versus Commissioner of Central Excise, 2015 (324) ELT 641 (SC); Commissioner of Central Excise versus Parmarth Irons Pvt. Ltd., 2010 (260) ELT 514 (All); Royal Impex versus Commissioner of Customs, Mumbai, 2008 (221) ELT 114 (Tri- Mumbai) in support of his contentions.