Page 105 - ELT_15th August 2020_Vol 373_Part 4

2020 ] SHAILENDRA SWARUP v. DEPUTY DIRECTOR, ENFORCEMENT DIRECTORATE 439

section 49 of FEMA, 1999 whereby in case it is decided to hold Adjudication
Proceedings personal hearing of the case could be waived at your request.
In case you prefer to waive personal hearing you may intimate accordingly
so that the case may be decided without your personal attendance on the
basis of available evidence.
Yours faithfully,
Sd/-
For Deputy Director”
13. We may also notice the provisions of Section 51 of FERA, 1973,
which is to the following effect :-
“Section 51. Power to adjudicate. - For the purpose of adjudging under sec-
tion 50 whether any person has committed a contravention of any of the
provisions of this Act (other than those referred to in that section) or of any
rule, direction or order made thereunder, the adjudicating officer shall hold
an inquiry in the prescribed manner after giving that person a reasonable
opportunity for making a representation in the matter and if, on such in-
quiry, he is satisfied that the person has committed the contravention, he
may impose such penalty as he thinks fit in accordance with the provisions
of that section.”
14. The provisions of Section 51 as noted above oblige the adjudicating
officer to hold an inquiry in the prescribed manner after giving that person a rea-
sonable opportunity for making a representation in the matter.
15. When notice dated 8-10-2003 was given for adjudication proceed-
ings it was obligatory for the adjudicating officer to give opportunity for making
representation. In response to the notice dated 8-10-2003 the appellant has sub-
mitted a detailed reply dated 29-10-2003. In his reply the appellant apart from
other facts stated following :
“1. The undersigned is a practicing Advocate of the Hon’ble Supreme
Court of India and was only a part-time, non-executive Director of erst-
while Modi Xerox Limited and was never in its employment nor ever had
any executive role or function in the said Company. Further the under-
signed was never in charge of nor ever responsible for the conduct of the
business of the Company MXL nor did the Noticee ever had any executive
role or function in the company.
2. The undersigned Noticee had not at any stage been involved in any
discussions or decisions relating to the import by the said Company and
never issued any instructions to any banker or any other functionary of
MXL to get any remittance affected out of India for any import.
3. The Notices was neither in charge of nor ever responsible for conduct of
the day-to-day business of MXL.”
16. The representation dated 29-10-2003 was, thus, first representation
submitted by the appellant in response to adjudication notice and the plea taken
by the appellant that he was only a part-time, non-executive Director of erstwhile
MXL and was never in-charge of nor even responsible for the conduct of busi-
ness of the Company was the plea taken first time by the appellant and could not
have been termed either as afterthought or denied consideration. The High Court
committed error in observing that plea taken by the appellant in its reply dated
29-10-2003 was afterthought, since, no such plea was taken in reply to the show
cause notice dated 19-2-2001. As noted above the notice dated 19-2-2001 although
EXCISE LAW TIMES  15th August 2020  105