SHAILENDRA SWARUP Vs. SPECIAL DIRECTOR

JUDGEMENT

(1.) THIS appeal is directed against an order dated 2nd July 2008 by the Appellate Tribunal for Foreign Exchange ('AT') dismissing the Appeal No. 1268 of 2004 filed against Adjudication Order ('AO') No. SDE (SKD) III/264/2004 dated 3rd November 2004 passed by the Special Director, Enforcement Directorate ('ED') , Government of India, inter alia holding the Appellant to be in contravention of Sections 18(2) and 18(3) read with Section 68 of the Foreign Exchange Regulation Act, 1973 ('FERA') and levying a penalty of Rs. 5 lakhs on the Appellant.

(2.) THE facts leading to the filing of the present appeal are that the Appellant was a part -time non -executive director of Flex Industries Ltd. ('FIL') from 10th November 1990 till 31st October 2001. By a letter dated 31st October 2001 addressed to the Board of Directors of the FIL, the Appellant resigned. An intimation under Form No. 32 to that effect was filed by the FIL with the Registrar of Companies ('ROC') on 13th November 2011. This Form No. 32 with the acknowledgment of the ROC has been enclosed as Annexure A to the appeal.

(3.) THE case of the Appellant is that he never received the said SCN and was never informed by the FIL of its receipt. The Appellant has placed on record, copies of two letters sent on behalf of the FIL to the ED in response to the said SCN. The first is dated 19th May 2004 with the subject matter stating "In the case of M/s. Flex Industries Ltd." The said letter has been addressed to the ED by M/s. A. Arora & Associates, Chartered Accountants. It begins with the line "Under instructions and on behalf of our captioned client........". A second reply was sent on behalf of FIL by the said firm of Chartered Accountants on 12th July 2004. The AO dated 3rd November 2004 refers to the aforementioned replies but states that it is filed on behalf of the "noticees" although at the time when the notice was issued, the Appellant was no longer a Director of FIL.