Page 115 - ELT_15th August 2020_Vol 373_Part 4

2020 ] EMBIO LTD. v. DIRECTOR GENERAL OF FOREIGN TRADE, NEW DELHI 449

penalty for a contravention of FERA, 1973, essential ingredients constituting an
offence under the FERA read with Section 68 has to be communicated to the per-
son proceeded with to enable him to make effective representation in the matter.
41. Learned Additional Solicitor General also submitted that all the
three Courts have held and found contravention proved by the appellant, this
Court may not interfere with such conclusion. We have already noticed above
that the plea of the appellant that he was part-time, non-executive Director not
in-charge of the conduct of business of the Company at the relevant time was
erroneously discarded by the authorities and the High Court and there is no
finding by any of the authorities after considering the material that it was the
appellant who was responsible for the conduct of business of the Company at the
relevant time. Thus, present is a case where the liability has been fastened on the
appellant without there being necessary basis for any such conclusion.
42. It is also relevant to notice that an order which was passed on 13-2-
2004 by the Deputy Director in adjudication proceedings although with regard to
different period, the plea of the appellant that he was only a part-time, non-
executive Director and not responsible of the conduct of business of the Compa-
ny was accepted and notice was discharged against the appellant. The order dat-
ed 13-2-2004 although related to different period but has categorically noticed the
status of the appellant as part-time non-executive Director. There being decision
of Adjudicating Authority, in the recent past, passed on 13-2-2004, that the appel-
lant was only a part-time non-executive Director of MXL, there has to be some
reasons for taking a contrary view by the adjudicating officer in order dated 31-3-
2004 with regard to affairs of the same company, i.e., MXL.
43. In view of the foregoing discussions, we are of the view that the ad-
judicating officer has erroneously imposed penalty on the appellant for the al-
leged offence under Section 8(3), 8(4) and 68 of the FERA, 1973 which order was
erroneously affirmed both by the Appellate Tribunal and the High Court.
44. In view of the aforesaid, this appeal deserves to be allowed, the
judgments of the High Court as well as those of the adjudicating officer and the
Appellate Tribunal are set aside. The appeal is allowed and the penalty imposed
on the appellant is set aside.

_______

2020 (373) E.L.T. 449 (Kar.)
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Ravi Malimath and M.I. Arun, JJ.
EMBIO LTD.
Versus
DIRECTOR GENERAL OF FOREIGN TRADE, NEW DELHI

Writ Appeal No. 6840 of 2017 (T-RES), decided on 4-2-2020
1
EPCG Scheme - Non-fulfilment of export obligation - Penalty on sick
unit - M/s. Karnataka Malladi Biotics Limited (KMBL) stood merged with ap-
________________________________________________________________________
1 On appeal from Writ Petition No. 4061 of 2014, decided on 14-11-2017 by Karnataka High Court.
EXCISE LAW TIMES  15th August 2020  115