LAWS(BOM)-2009-4-127

ASHOK CHOPRA Vs. UNION OF INDIA

Decided On April 16, 2009
ASHOK CHOPRA Appellant
V/S
UNION OF INDIA Respondents

JUDGEMENT

(1.) Being aggrieved by dismissal of their appeals by the Appellate Tribunal for Foreign Exchange, New Delhi, against the order passed by the Assistant Director, Enforcement Directorate imposing penalty of Rs. 3,60,000/- on M/s. Natural Granite Exports (the appellant in Appeal No. 8 of 2009) and penalty of Rs. 1,55,000/ - each on the appellants in the remaining two appeals for contravention of section 9(l)(c) of the Foreign Exchange Regulation Act, 1973 (for short 'FERA'), the appellants have preferred these three appeals. As all the appeals arise out of the common orders and facts, they may be disposed of by this common judgment.

(2.) The appellant - M/s. Natural Granite Exports is a proprietorship concern, of which the appellant Ashok Chopra is the proprietor. They carried on business of export in marble. It is the contention of the Enforcement Directorate (the Revenue) that the appellant had imported marble from COGEMAR, an exporter from Italy. The marble of different qualities and descriptions was imported and the same was received by three

(3.) According to the appellant - M/ s. Natural Granite Exports is not a partnership firm, but a proprietorship concern of which Ashok Chopra is a proprietor and in view of this, the proprietor of the proprietorship concern cannot be treated as a separate person from the concern and if the penalty was to be imposed that could be done only against one person and, therefore, the separate order of penalty against Ashok Chopra and Suresh Chopra is illegal. It is further contended that the FERA was repealed as per the provisions of section 49 of the Foreign Exchange Management Act, 1999 ('FEMA') and as per the provisions of section 49 of FEMA, action could be taken for violation of the provisions of FERA only within two years from the date of enforcement of FEMA. While in this case, the action was taken long after the expiry of two years and, therefore, it is bad in law. It is thirdly contended that the Enforcement Directorate relied on the xerox copy of the alleged invoice received from COGEMAR. Neither the document is duly authenticated nor any other evidence was led to prove the same and, therefore, the evidence of the Assistant Director, Enforcement Directorate as well as the Appellate Tribunal cannot be sustained.