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1992 (8) TMI 225 - SC - FEMAWhether the Act is incompatible with the repealed Act i.e. Foreign Exchange Regulation Act, 1947? Whether it manifested any contrary intentions to the repealed Act? Held that - Appeal dismissed. Article 20(1) of the Constitution of India provides that no person shall be convicted of any offence except for violation of the law in force at the time of commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. The repealed Act prescribed three times the value as penalty and, under the Act, section 50 provides five times penalty. So what would be imposable as penalty is three times. The penalty imposed as reduced by the Appellate Tribunal is not even three times as contemplated under section 23 of the repealed Act. Therefore, though the Act evinced a contrary intention of imposition of higher penalty than the one prescribed under the Act 7 of 1947, on the facts in this case, the penalty imposed is perfectly valid and legal.
Issues Involved:
1. Jurisdiction and authority of law under the repealed Foreign Exchange Regulation Act, 1947. 2. Applicability of penalties under the repealed Act versus the new Foreign Exchange Regulation Act, 1973. 3. Double jeopardy and its application in concurrent proceedings under different statutes. 4. Sufficiency of evidence to support the findings of contravention. Issue-wise Detailed Analysis: 1. Jurisdiction and Authority of Law: The appellant contended that the Foreign Exchange Regulation Act, 1947 (the "repealed Act") was repealed by the Foreign Exchange Regulation Act, 1973 (the "Act"), and no action was taken under the repealed Act before the new Act came into force on September 19, 1973. Therefore, any impugned action is without jurisdiction and authority. The court referred to Section 81 of the Act and Section 6 of the General Clauses Act, 1897, which preserve the legal consequences of actions taken under the repealed Act. The court held that liabilities, penalties, and punishments incurred under the repealed Act continue to exist and can be enforced as if the repealed Act was still in force. 2. Applicability of Penalties: The appellant argued that the penalties under the new Act are different and higher than those under the repealed Act. The court noted that Section 23(1) of the repealed Act prescribed a penalty of up to three times the value of the foreign exchange involved or Rs. 5,000, whichever is more, while Section 50 of the Act prescribes up to five times the value or Rs. 5,000, whichever is more. The court concluded that since the penalty imposed by the Appellate Tribunal was not even three times the value, it was valid and legal under the repealed Act, adhering to Article 20(1) of the Constitution of India, which prohibits retroactive penalization. 3. Double Jeopardy: The appellant claimed that proceedings under the Sea Customs Act, 1922, for the same contravention had terminated in their favor, and thus, no further proceedings under the Act could be taken. The court dismissed this contention, stating that the two Acts operate in different fields-one for contravention of foreign exchange regulations and the other for customs duty evasion. The doctrine of double jeopardy does not apply because the penalties under the two statutes address different offenses. 4. Sufficiency of Evidence: The appellant argued that the findings were based on no evidence. The court found that the appellant was given notice and an opportunity to explain. The contravention was brought to the appellant's notice in the show-cause notice. The appellant's explanation was considered, and since there was no express permission from the Reserve Bank of India for the payments made to the agent outside India, the contravention was proved. The court held that the penalty imposed was based on material, valid reasons, and proper findings. Conclusion: The court upheld the penalties imposed on the appellant, dismissing the appeal. It concluded that the jurisdiction and authority under the repealed Act were preserved by the new Act and the General Clauses Act. The penalties were valid under the repealed Act's provisions, and the doctrine of double jeopardy did not apply. The findings of contravention were supported by sufficient evidence. The appeal was dismissed, with each party bearing its own costs.
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