Full Judgment
1. This appeal together with dispensation application has been filed against Adjudication Order Nos. 178-179/95/DD dated 27-11-1995 (despatched on 2-1-1996) under which a penalty of Rs. 20,000 and further penalty of Rs. 5,000 has been imposed on the appellant for two transactions of foreign exchange prohibited by section 8(1) of the Foreign Exchange Regulation Act, 1973 (âthe Act).
2. The appellant has sent an application dated 1-8-1996 stating that it is not possible for him to attend the hearing at Delhi due to his old age and paucity of funds. He has prayed that his application for waiver of pre-deposit and the appeal be disposed of after considering the synopsis of his written submissions and the record of the case.
3. Shri Gadoo is present for the respondents. He has been heard.
4. The appellant has stressed one of the several points on which he has assailed the impugned order and in my opinion that point itself, which appears from a bare perusal of the impugned order, is sufficient to dispose of the appeal on merits. I, therefore, decided to waive the pre-deposit and proceeded to consider the appeal on merits. This order disposes of the appeal.
5. The appellant has pointed out that the learned Adjudicating Officer who passed the impugned order did not hold any personal hearing as mandated by rule 3 of the Adjudication Proceedings and Appeal Rules, 1974.
6. The appellant has stated that he came to know about the initiation of adjudication proceedings only in 1993 when he received a notice of personal hearing dated 19-8-1993 fixing the hearing on 13-9-1993. In reply the appellant denied having received the show-cause notices and requested that copies be supplied to him. After the receipt of the copies of the show-cause notice and inspection of records the appellant filed separate replies, both dated 30-12-1993, to each show-cause notice. In this reply, he denied the charges levelled in the show-cause notices and pleaded for dropping the proceedings in view of the time lapse of 15 years from the date of search and the fact he had already been proceeded against under the Customs and Gold Control Acts. He also pleaded his personal problems and requested that it the adjudication proceedings were still held, he may be granted personal hearing. The then Deputy Director Shri A.A. Shankar held personal hearing on 11-1-1994 when the appellants counsel appeared and made legal submissions, cited judicial pronouncements in support and reiterated the pleas taken in the replies to the show-cause notices. However, he did not pass any order. Thereafter on 5-2-1996, the appellant received the adjudication order dated 27-11-1995 but the order was made by Shri K.P. Desai, Dy. Director and not by Shri A.A. Shankar who had heard the case.
7. The facts as stated by the appellant in the written submissions cannot be disputed as the same have been reproduced in the impugned order itself. The appellant has disputed the receipt of show-cause notice in 1979 but in my opinion that is not relevant because, in any case, it is clear from the impugned order that no personal hearings were held after the receipt of the appellants interim reply dated 9-8-1979 and before January 1994. No doubt the learned Adjudicating Officer has discussed in detail the points made by the appellant in his replies to the show-cause notices which have been repeated in the written submissions and filed by him except the point of time gap of 15 years in holding the personal hearing and passing the impugned order.
8. I have considered the submissions made by the appellant and heard Shri Gadoo also. I find full force in the argument that the learned Dy. Director who passed the impugned order misdirected himself in law in not holding personal hearing before himself and in passing the order on consideration of the record of the proceedings held by his predecessor. The personal hearing under the AP and A Rules, 1974 ought to be held by the Adjudicating Officer who passes the order. Shri Gadoo suggested that the case be remanded for fresh personal hearing. I have given my due consideration to the suggestion. However, in my opinion, it will be unjust to hold fresh hearings in the peculiar facts and circumstances of this case. With regard to the SCN-I, it is not disputed that the appellant has already been penalised by customs authorities and the seized gold, foreign currency and also the Indian currency have already been confiscated by those authorities. The charge under SCN-II is based on the seizure of foreign currency from another co-noticee and his statement that he acquired it from the appellant. There is no corroboration of the allegation that the appellant gave the said foreign currency to the co-noticee. The co-noticee has also been proceeded against and most likely the seized foreign currency must have been confiscated. The charge against the appellant, therefore, remains the one under SCN-I and it is based on the material for which he has already been penalised by the customs authorities, though I am conscious, that the proceeding under the Customs Act is no bar for imposition of any penalty for violation of FERA. The issue essentially is whether any further penalty is called for and for determination of that issue it is not irrelevant to take into consideration the fact of imposition of penalties by the customs authorities and confiscation of the incriminating gold and foreign currency as also the circumstances of personal hardships that visited the appellant during the intervening 15-16 years. The gap of about 15 years in holding the personal hearing, which will now be of 16-17 years, is also a relevant consideration.
9. In the circumstances, in my opinion, it will not be just and proper to remand the case for fresh hearing and it will be in the interest of justice to put a stop at this stage. I, therefore, allow the appeal and set aside the impugned order.