Page 103 - ELT_15th August 2020_Vol 373_Part 4

2020 ] SHAILENDRA SWARUP v. DEPUTY DIRECTOR, ENFORCEMENT DIRECTORATE 437

(1) Whether the plea taken by the appellant in its reply dated 29-10-
2003 that he was only a part-time, non-executive Director and was
never in-charge of nor even responsible for the conduct of business
of the Company at the relevant time was an afterthought, since, in
the reply given by the Company Secretary dated 26-3-2001 no such
plea was taken?
(2) Whether the appellant has not brought any material on record ei-
ther before the Adjudicating Authority or the Appellate Tribunal to
prove that he was only a part-time, non-executive Director not re-
sponsible for the conduct of business of the Company at the time of
commission of the offence?
(3) Whether the Adjudicating Authority, Appellate Tribunal and the
High Court erred in holding contravention of provisions of Section
8(3), 8(4) and Section 68 of FERA, 1973 by the appellant without
their being any material that the appellant was responsible for the
conduct of business of the Company at the time of commission of
the offence and without recording any specific findings to that ef-
fect?
Point No. 1
10. As noted above, the High Court has rejected the plea of the appel-
lant that he was part-time, non-executive Director not responsible for the conduct
of business of the Company at the relevant period on the ground that the above
plea is an afterthought since in reply given by the Company Secretary to show
cause notice dated 19-2-2001 no such plea was taken.
11. We may first notice the show cause notice dated 19-2-2001. The
show cause notice dated 19-2-2001 was given to the MXL and all Directors of
MXL and along with show cause notice Annexure ‘B’ was a list of Directors of
MXL where the name of the appellant was also included at Serial No. 12. It is
relevant to notice following portion of the show cause notice :
“AND WHEREAS it further appears that S/Shri - As per Annexure B
Proprietor, Partner(s)/Manager/Secretary of the said company/firm has
been responsible/supervisor/incharge of the said company/firm for the
conduct of business of the company/firm at the relevant time when the
aforesaid import was made as such he/she/they has/have rendered
himself/herself/themselves liable also to be proceeded against under
Section 50 of the Foreign Exchange Regulation Act, 1973 (46 of 1973).
NOW THEREFORE, the said M/s. Modi Xerox Ltd. as well as its Direc-
tors of the above address are hereby required to show cause in writing
(in duplicate) within thirty days from the date of receipt of this Memo-
randum as to why adjudication proceedings as contemplated in Section
51 of the Foreign Exchange Regulation Act, 1973 (46 of 1973) should not
be held against them for the aforesaid contravention.”
12. The show cause notice, thus, asked the Directors to show cause as to
why adjudication proceedings as contemplated in Section 51 of the FERA, 1973 should
not be held against them. The reply to the said notice was sent only by the Compa-
ny through Acting Company Secretary dated 26-3-2001. The Deputy Director,
Enforcement Directorate after considering the reply to show cause by XMC’s vi-
de letter dated 26-3-2001 decided to hold adjudication proceedings as contem-

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