Delhi High Court
V. Bhaskaran vs Union Of India & Another on 18 December, 2009
Author: Sanjiv Khanna
27.
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13936/2009
V BHASKARAN ..... Petitioner
Through Mr. Sudhir Nandrajog, Sr. Advocate
with Mr. Gagan Gupta & Mr. K.V. Dhanapal,
Advocates.
versus
UNION OF INDIA AND ANOTHER ..... Respondents
Through Ms. Rajdipa Behura, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 18.12.2009
1. The petitioner, Mr. V. Bhaskaran, has impugned the order dated 26th
October, 2009 passed by the Appellate Tribunal for Foreign Exchange
dismissing his application for waiver/dispensation of the penalty amount of
Rs.17 lacs imposed by the adjudicating authority for violation of provisions of
Foreign Exchange Regulation Act, 1973.
2. At the very outset, it may be stated that the petitioner has not pleaded
financial stringency and has not filed any document to show his financial
position. The argument raised by the petitioner is that the impugned
adjudication order imposing penalty is prima facie and ex facie bad in law. It
is submitted that the petitioner is a brother of one Mr. V.N. Sudhagaran
proprietor of Super Duper T.V. and the only role assigned to the petitioner is
that the petitioner was authorized to operate bank account of Mr. V.N.
Sudhagaran. It is submitted that the petitioner did not operate the bank
account of Mr. V.N. Sudhagaran.
3. Learned counsel for the respondent-Enforcement Directorate in this
connection has drawn my attention to paragraphs 141and 142 of the
WPC No.13936/2009 Page 1
adjudication order dated 14th May, 2009. The said paragraphs read as under:-
"141. The aforesaid submission adduced by Shri
V.N. Sudhagaran @ Vive Sudhagaran is
substantiated by following documentary evidences
despite the stand of Shri V. Bhaskaran that he was
not at all involved in the activities of M/s Super
Duper TV and that he had not placed any orders for
the subject goods or paid any money for the same
to Shri Ramachandran or any one else.
(a) Letter dated 11.2.1999 of Indian Bank,
Abhiramapuram Branch, Chennai. Along with the
said letter, the bank had forwarded copy of letter
dated 12.12.1994 of Shri V.N. Sudhagaran,
proprietor of M/s Super Duper TV addressed to the
Bank by which the company had authorized Shri
V. Bhaskaran also to operate bank account.
(b) As already discussed in the preceding paragraphs,
certain documents were seized from the business
premises of M/s J Jay TV Pvt. Ltd. on 21.9.1995.
Out of those documents, page 24 in File marked „I‟
was letter dated 01.4.1995 addressed to Mr. K.
Ramachandran duly signed by Shri V. Bhaskaran
stating that the items mentioned therein are
urgently required by them and that he (Bhaskaran)
had already discussed with „Chinnamma‟ and as
per her instructions the letter was being faxed to
him (Ramachandran) to enable Ramachandran to
bring the goods along with him when he reaches on
Tuesday. During the course of the investigations,
the notices admitted that „Chinnamma‟ is none
other than Smt. Sasikala.
(c) Another document seized from the presmises of
M/s J Jay TV Pvt. Ltd. on 21.9.1995 was invoice
bearing no. TYE/1004/95 dated 05.4.1995 of M/s
Tai Yeng Electroniks, Singapore „for Account and
risk of M/s Super Duper TV, Chennai for
Singapore $ 44040.00. The items mentioned in the
said invoice exactly tallied with the items
mentioned in letter dated 01.4.1995 of Shri
Bhaskaran to Mr. Ramachandran, cited at (b)
above.
WPC No.13936/2009 Page 2
(d) Bill of Entry no. 19882 dated 10.4.1995 received
from the Customs department pertained to the
import and clearance of the consignment
containing the goods as per the above invoice after
payment of customs duty of Rs.7,67,403/-. The
assessed value of the consignment was
Rs.10,08,467.67.
(e) As revealed from the import documents, the Bill of
Entry (no. 19882 dated 10.4.1995) was filed with
the Customs on 10.4.1995 and duty was paid on
17.4.1995 and consignments cleared. However,
the notarized document showing the goods given as
gift to Shri V.N. Sudhagaran was executed on
29.7.1996 i.e. after about 15 months from the date
of arrival of the cargo in India and clearance of the
same.
142. A careful analysis of the letter dated
1.4.1995 of Shri V. Bhaskaran and invoice no.
1004 dated 5.4.1995 revealed in unambiguous
terms that it was Shri V. Bhaskran who on the
instructions/in consultation with Smt. Sasikala had
placed the order with Mr. K. Ramachandran of M/s
Tai Yeng Electroniks, Singapore for supply of the
said electronic goods i.e. Betacam S.P. Recorder
and accessories and the said Ramachandran had
sent the goods to M/s Super Duper TV vide invoice
dated 5.4.1995. The consignment was duly cleared
from the customs vide Bill of Entry no. 19882
dated 10.4.1995 on payment of the customs duty.
It is quite strange that when the goods were cleared
after payment of custom duty on 17.4.1995, the
„gift deed‟ was created and signed by Shri S.
Manickam of Singapore on 29th July, 1996 i.e. after
the lapse of pretty long time of about 15 months.
The Bill of Entry concerned with the import and
the invoice did not mention anything about the
import consignment as „gift‟. In fact, when the
records of the case have been examined in its
totality, it could be seen that the gift deed was
created only after the Directorate commenced
WPC No.13936/2009 Page 3
investigation in the matter. The letter dated
1.4.1995 of Shri V. Bhaskaran to Mr. K.
Ramachandran containing the list of goods
required by him and the fat that the same goods
were covered in the invoice dated 5.4.1995, it can
be concluded that the said letter is an order placed
by Shri Bhaskaran for M/s Super Duper TV of
which Shri Sudhagaran was the proprietor. The
involvements of Shri Bhaskaran as well as Shri
Sudhagaran in the subject import have been clearly
proved from these self-explanatory documents. In
the circumstances, it could be well concluded that
the document was created for showing the import
as „gift‟ which otherwise was a purchase of the
electronic goods as per the invoice no. 1004 dated
5.4.1995 of M/s Tai Yeng Electroniks by paying
the invoice price to wit. Singapore $44040.00
against the purchase order dated 01.4.1995 placed
by Shri V. Bhaskaran."
4. It is, therefore, incorrect to state that the case against the petitioner is
because he is a joint account holder. The adjudication order refers to other
evidence and material against the petitioner. In view of the defence taken by
the petitioner, he was confronted with the said evidence during the
adjudication proceedings. In view of the aforesaid findings recorded in the
adjudication order, I do not think the impugned order dated 26th October, 2009
dismissing the application for waiver of pre-deposit requires interference. It is
clarified that the observations made in this order are for the disposal of the
present writ petition and will not influence the Appellate Tribunal when the
appeal of the petitioner is heard on merits.
The writ petition is dismissed.
SANJIV KHANNA, J.
DECEMBER 18, 2009
VKR
WPC No.13936/2009 Page 4
