Page 20 - ELT_15th August 2020_Vol 373_Part 4

xviii EXCISE LAW TIMES [ Vol. 373
MRP stickers pasted on imported cosmetics prior to release, no bar on
sticking such stickers - See under CONFISCATION, REDEMPTION FINE
AND PENALTY ................................... 553
Natural justice violation by Tribunal in valuation related matter, appeal not
maintainable before High Court - See under APPEAL TO HIGH COURT ... 508
Notional High Sea Sale Commission not includible in assessable value - See
under VALUATION (CUSTOMS) ......................... 530
Offence by companies - Liability of director - Foreign Exchange -
Restrictions on dealing - Adjudication - Procedure - Only company
secretary responding to show cause notice issued by Adjudicating Officer
to company and its directors - Written representation by said director
during course of personal hearing to effect that part-time, non-executive
director of company and never in-charge of or even responsible for
conduct of business of Company - Statement by person in personal
hearing even though given in form of written representation to be
considered by Adjudicating Officer otherwise personal hearing would be
empty formality and meaningless - Director’s representation not
contradicting company secretary’s reply - Representation not to have
been ignored by erroneous assumption that it was an afterthought - High
Court erred in holding that said material was not filed before Adjudging
Authority Appellate Tribunal - Nothing on record brought by
Department to show that above plea was incorrect or that director was
responsible for conduct of business of company at relevant time -
Director’s plea erroneously refused to be considered - Liability fastened
on director without there being necessary basis for any such conclusion -
No reason given to take contrary view in respect of director when
Adjudicating Officer in another order had held that concerned director
was only part-time non-executive director - Order of Adjudicating
Authority imposing penalty on director or by Appellate Tribunal without
returning finding on director’s plea, not sustainable - Adjudicating officer
erroneously imposed penalty on director and it was erroneously affirmed
both by Appellate Tribunal and High Court - Orders and penalty
imposed set aside - Sections 8, 50, 51 and 68 of Foreign Exchange
Regulation Act, 1973 — Shailendra Swarup v. Deputy Director, Enforcement
Directorate (S.C.) .................................... 433
— Liability of director - Foreign Exchange - Restrictions on dealing - Non-
executive director - Requirement of being in-charge of and responsible
for conduct of company’s business at relevant time - Not all director
irrespective of role and responsibilities can be held responsible for
contraventions by company - Liability to be proceeded with offence
under Section 68 of Foreign Exchange Regulation Act, 1973 depends on
role one plays in the affairs of the company and not on mere designation
or status — Shailendra Swarup v. Deputy Director, Enforcement Directorate (S.C.) ...... 433
— Liability of director - Presumption that director in-charge of company, a
rebuttable presumption - Sections 8 and 68 of Foreign Exchange
Regulation Act, 1973 — Shailendra Swarup v. Deputy Director, Enforcement
Directorate (S.C.) .................................... 433
Partial sanction of rebate claim of duty paid on inputs used in export goods
in terms of C.B.E. & C. Circular No. 129/40/95-CX., dated 29-5-1995, not
sustainable - See under REBATE .......................... 566

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