Research › Search › Judgment

Delhi High Court · body

2007 DAILYLAW 2723 (DEL)

AGIO EXPORTS LTD. v. UNION OF INDIA

2007-10-29

Shiv Narayan Dhingra

body2007
( 1 ) THIS appeal has been preferred under Section 35 of the Foreign Exchange management Act, 1999 against the order of Foreign Exchange Appellate Tribunal dated 28th March, 2007. The order reads as under :- "shri Anjan Mukherjee, advocate appeared on behalf of the appellants who wanted to argue on application for cross examination of the witnesses, which application was rejected by the adjudicating officer during adjudication proceedings. It is argued that the documents were planted and loose sheets were not signed by all concerned including panch witnesses. A prayer is also made for remand of these matters. All these issues can be decided only after hearing these appeals on merits. Today there is none to represent the respondent. These appeals are adjourned and fixed for hearing on 23. 7. 07. " ( 2 ) A perusal of the order would show that on 28th March, 2007 when the application of appellant for calling witnesses for cross examination was taken up, only the Advocate for the appellant appeared. The respondent was not represented at that time. The Tribunal observed that the issues raised by the appellant in the application can be decided only after hearing the appeal on merits. There was no one to represent the respondent and the appeals were adjourned for hearing on 23rd July, 2007. ( 3 ) THE Appellate Tribunal even at the time of deciding the application is supposed to hear both the parties and cannot decide the application without hearing the opposite party. Moreover, Appellate Tribunal has not dismissed the application but merely observed that the issue raised in the application can be decided only after hearing the appeal on merits. Learned counsel submitted that if the application is decided after the appeal, the application would become infructuous. The application of the appellant should be decided before decision of the appeal. The counsel drew my attention to Section 53 of FERA, which prescribed powers of the Appellate Tribunal. The corresponding Section 28 of fema which provides that the Appellate Tribunal shall not be bound by the procedure laid down by CPC but shall be guided by principles of natural justice and subject to other provisions of the Act, the Appellate Tribunal shall have power to regulate its own procedure. Since the proceedings before Appellate tribunal are under FEMA and not under FERA, provisions of FEMA shall be applicable. Since the proceedings before Appellate tribunal are under FEMA and not under FERA, provisions of FEMA shall be applicable. Section 28 (2)of FEMA provides that Appellate Tribunal shall have same powers as vested in Civil Court under CPC while trying a suit in respect of following matters : " (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of sections 123 and 124 of the India Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office; (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decisions; (g) dismissing a representation of default or deciding it ex parte; (h) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and (i) any other matter which may be prescribed by the Central Government. " ( 4 ) A reading of Section 28 would show that the power of Appellate tribunal, under CPC have been specified and entire CPC is not applicable to the matters before Appellate Tribunals. The Appellate Tribunals has to be guided by principle of natural justice and evolve its own procedure. One of the basic rule of adjudication is following the principles of natural justice. It could not be expected from the Appellate Tribunal that it should have decided the application of appellant without hearing the other party. The Appellate tribunal had, therefore, rightly observed that it shall decide the application after hearing the opposite party. The appellate tribunal has not stated that it will decide the application after deciding the appeal. The order only means that it will be decided after hearing arguments on appeal. The Tribunal after hearing arguments on appeal may decide the application first or may decide the application and the appeal together. The order does not imply that it shall decide the application after deciding the appeal. It is not disputed that the issue of not allowing cross examination of the witnesses by adjudicating authority has been raised by the appellant as a ground of appeal and the appellant also made a separate application for calling witnesses for cross examination. The order does not imply that it shall decide the application after deciding the appeal. It is not disputed that the issue of not allowing cross examination of the witnesses by adjudicating authority has been raised by the appellant as a ground of appeal and the appellant also made a separate application for calling witnesses for cross examination. ( 5 ) THERE is difference in the language used in Section 52 of FERA and section 19 of FEMA. While Section 52 (3) provided that Appellate Tribunal may, after making such further enquiries, as it deems fit confirm, modify or set aside the order appealed against. Section 19 (3) of FEMA would show that the words "after making such enquiry as it may deem fit" are missing and it only provides that the Appellate Tribunal may after giving parties to the appeal an opportunity of being heard pass such order as it deems fit. Thus under FEMA the appellant tribunal has not been given power to make further enquiry. ( 6 ) I consider that Appellate Tribunal has acted in accordance with law and the order of the Appellate Tribunal does not suffer from any infirmity or illegality. The appeal is hereby dismissed.