Judgment
Sarvesh Chandra, Chairman - These appeals are directed against Adjudication Order No. ADJ/68/B/SDE/PKA of 1998, dated 30-6-1998 under which a penalty of Rs. 25 lakhs has been imposed on Sajjan Singh, (the appellant in Appeal No. 15 of 1999) for sale and purchase of foreign currency thereby contravening the provisions of section 8(1) and 8(2) of the Foreign Exchange Regulation Act, 1973 (âthe Act). Appeal No. 16 of 1999 is directed against the penalty of Rs. 5 lakhs imposed under the same order on the appellant Shambu Singh for aiding and abetting Sajjan Singh for the contravention committed by him. 2. The memoranda of these appeals are accompanied by applications for condonation of delay, stay of the impugned order and waiver from pre-deposit of the penalty amounts. The delay in filing these appeals is of 138 days. Since this Board is prohibited, in terms of the proviso to section 52(2) of the Act, to condone the delay where an appeal has been filed after the expiry of 90 days of the receipt of the impugned order, we decided to issue a notice stating the position and calling upon the appellants as to why their appeals should not be dismissed as time-barred. Shri Malang, the learned counsel for the appellants, appeared in response to our said notice of 29-4-1999. Shri Gadoo is present on behalf of the respondents. We have heard the parties. 3. In regard to the appellant in Appeal No. 16 of 1999, Shri Malang submitted that since the impugned order was delivered at the residence of that appellant, he cannot take the plea that that appeal is not barred by time as shown in this Boards notice of 29-4-1999. He added that although he has a good ground to seek condonation but in view of the limitation on the powers of this Board under the first proviso to section 52(2), he would have to seek his remedy elsewhere. 4. In regard to Appeal No. 15 of 1999, Shri Malang submitted that since the impugned order was delivered at the residence of Shambu Singh whereas the appellant resides in another building, there is no proper service of the order and that the appellant filed the appeals within the prescribed period after having come to know about the order. He submitted that although the appellant has filed an application for delay but strictly speaking, there is no delay in the case of Appeal No. 15 of 1999. Shri Gadoo appearing for the respondents, submitted that, according to the department, the appellant had been staying with Shambu Singh. He further submitted that although the appellant while retracting from his statement under section 40 of the Act, built-up a story that the foreign currency was not recovered and seized from the residential premises, viz., Room No. 27, 3rd floor, 151 Bazargate, Fort, Mumbai-1, and that he was merely called to witness the recovery of the packet which fell from one man who ran away and could not be intercepted. Shri Gadoo submitted that even while building up the story that he had gone to that premises merely to visit the family of Shambu Singh, the appellant has not stated as to where was he residing. On the other hand, the department had sent the show-cause notice as well as notices of personal hearing at the same address, namely, Room No. 27, 3rd floor, 151 Bazargate Street, Mumbai-1, and the appellant has never complained that he had not received any of those notices; in fact he had been responding to those notices by making appearance through his counsel. Even the learned counsel for the appellant, while sending the belated reply to the SCN, had not complained that the notices were not duly served on this appellant. Shri Gadoo submitted that in the circumstances, the appellants story that he was not residing at the same premises where Shambu Singh was residing is false and has been put forth merely to extricate himself from the factum of recovery of foreign currency. Shri Gadoo produced for our perusal a few acknowledgements of Sajjan Singh of the notices sent to him on the same address, namely, Room No. 27, 3rd floor, 151 Bazargate, Fort, Mumbai. 5. We are not impressed with the plea advanced by Shri Malang that the impugned order was sent on an address other than residential address of Sajjan Singh. In his statement of 16-5-1995, Sajjan Singh had stated that after ceasing to work at Hardware shop at Mulund, he started living, from October 1994, with Shambu Singh at his residence, Room No. 27, 3rd floor, 151 Bazargate, Fort, Mumbai. Although this statement was retracted, he had not, at any subsequent stage, given any other address of his residence. It is only at the stage of memo of appeal that he came forward with another address. However, even this Boards notice of 29-4-1999 sent on the address given in memorandum of appeal, viz., 42, Bazargate Street, 3rd floor, Fort, Mumbai-1, was returned undelivered with the remark âNot known and âIncomplete address/Not known. Shri Malang, in the course of the hearing before us, offered to furnish evidence, if permitted, to show that the premises Room No. 27, 3rd floor, 151 Bazargate Street, Fort, Mumbai, are different from premises No. 42, Bazargate Street, 3rd floor, Fort, Mumbai-1, where, according to Shri Malang, Sajjan Singh had been residing. Shri Malang stated that he had produced a certificate from Ambalal Dave, Doodhwala (Milkman) to say that Sajjan Singh had been working with him at the salary of Rs. 750 per month from 1-3-1995 to 1-7-1998 and thereafter at the salary of Rs. 1,000 per month and that after 31-1-1999, he had left for his village. In our opinion, this certificate, apart from not being an objective evidence of Sajjan Singhs residence, is of no help to him. It is also not reliable for what it says in view of the fact that during the period of Sajjan Singhs employment shown in the certificate, Sajjan Singh was detained under COFEPOSA. We do not consider it necessary to allow Shri Malang to file evidence to show that the premises 151, Bazargate Street and 42, Bazargate Street are different since the real issue is whether Sajjan Singh at the relevant period had been residing at Room No. 27, 3rd floor, 151 Bazargate Street, Fort, Mumbai or at 42, Bazargate Street, 3rd floor, Fort, Mumbai. Shri Malang stated that there may possibly be no objective evidence, such as, ration card, etc., in respect of Sajjan Singh to show that he had been residing at 42, Bazargate Street, 3rd floor. We have also noted that in his application for condonation of delay, Sajjan Singh has not taken the plea that the impugned order had not been properly served on him for the reason that he was not residing at the address where the order was sent by registered post. His plea for condonation of delay is similar to that of Shambu Singh. In the premises, his case for condonation of delay, in our opinion, is not different from that of Shambu Singh, the appellant, in Appeal No. 16 of 1999. Since this Board has no power to condone delay where the appeal has been filed after the expiry of 90 days of the service of the order in accordance with rule 10 of the Adjudication Proceedings and Appeal Rules, this Board has no jurisdiction to condone the delay. 6. In view of the above, both these appeals are dismissed as time-barred.