1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FERA APPEAL NO. 15 OF 2009 IN APPEAL NO.27 OF 2007 Kapoor Jewellers Pvt. Ltd. .. Appellant V/s 1. Union of India 2. Assistant Director of Enforcement, Mumbai .. Respondents Mr. D. Dharkar with Mr. Mayur Shanbag i/b S.V. Pikale & Co. for the appellant. Mr. R. Ashokan for the respondents. CORAM : F.I. REBELLO & D.G. KARNIK, JJ. DATE : 7TH AUGUST 2009 P.C. : 1. A show cause notice came to be issued to the appellant on 21st January 2002. The show cause notice set out that the appellant was in contravention of the provisions of section 9(1)(e) of FERA, 1973 as the appellant had placed a sum of Rs.8,00,000/- to the credit of non-resident Indian in the books of account of M/s Kapoor Jewellers Pvt. Ltd. without the general or special exemption from the Reserve Bank of India. The appellant filed their 2 reply which is dated 30th April 2003. In the reply of the appellant, its stand was that this sum of Rs.8,00,000/- was received from a resident Indian by an account payee cheque only. 2. The Assistant Director of Enforcement by his impugned order dated 29th September 2003 was pleased to hold that the reference to Rs.8,00,000/- was a typographical error whereas it should have been Rs.10,00,000/- to the credit of Mr. Jagdishchandra Makwana, a non-resident Indian and accordingly imposed a penalty of Rs.5,00,000/- on the appellant. In this appeal, we are not concerned with the penalty imposed on the Director of M/s Kapoor Jewellers Pvt. Ltd. The aggrieved appellant herein preferred an appeal before the Tribunal. The Tribunal by its impugned order dated 21st February 2008 disposed off the appeal preferred by the appellant herein as also by the Director Mr. Rameshchandra K. Jain. The Tribunal proceeded on the footing that the issue involved in the appeal was the sum of Rs. 10,00,000/- received from Mr. Jagdishchandra Makwana. The issue of Rs. 8,00,000/- whether it was received from a resident Indian was not answered by the learned Tribunal. 3. At the hearing of this appeal by M/s Kapoor Jewellers Pvt. Ltd., its learned counsel draws our attention to the show cause notice dated 18th January 1999 in respect of various allegations on the part of the appellant herein including receipt of Rs.10,00,000/- from Mr. Jagdishchandra 3 Makwana. In respect of this show cause notice, the appellant also had filed reply on 8th December 1998. The Deputy Director of Enforcement by his order dated 22nd February 2001 was pleased to hold that making payment of Rs.10,00,000/- by M/s Kapoor Jewellers Pvt. Ltd. To Mr. Jagdishchandra Makwana, a person resident outside India, does not come within the ambit of the provisions of section 9(1)(a) ibid against the appellant herein and/or its Directors and as such does not survive. Consequently, no penalty was imposed insofar as the subject matter of that show cause notice was concerned. 4. It appears that both the original authority as well as the appellate authority have not considered this aspect of the matter, namely whether the sum of Rs.10,00,000/- which was considered by the first show cause notice, is the same in respect of which the original authority and the appellate authority have come to the conclusion that there is a violation qua the second show cause notice. 5. For the aforesaid reasons, we set aside the impugned order of the Deputy Director of Enforcement and the learned Tribunal and remand the matter back to the Deputy Director of Enforcement for reconsidering the matter on this aspect of the issue. Considering that the matter is of the year 2002, the entire exercise to be completed within 6 months. 4 6. The appellant had deposited some amount before the Tribunal as pre- deposit. That amount to continue till the disposal of the proceedings before the Deputy Director of Enforcement and for a period of 8 weeks thereafter. 7. Appeal disposed of accordingly. 8. Copy of this order be served on the Deputy Director. (D.G. KARNIK, J.) (F.I. REBELLO, J.)