2004 (7) TMI 365 - HC - Companies Law

Summary

Issues:
1. Validity of the notification dated 15-6-1977 with retrospective effect from 1st April, 1974
2. Applicability of notification dated 25-9-1958 to foreign currency transfers made in 1974-75
3. Jurisdiction of the authorities in imposing penalties for contravention of the Foreign Exchange Regulation Act
4. Determination of permanent residency status of the petitioner

Analysis:

Issue 1: Validity of the notification dated 15-6-1977 with retrospective effect from 1st April, 1974
The petitioner challenged the legality of the notification dated 15-6-1977, arguing that it was unconstitutional and invalid due to its retrospective effect. However, the court held that the show-cause notice issued to the petitioner in 1974-75 was under the provisions of the notification of 1958 as amended in 1974. Therefore, the contention that the 1977 notification was applied retrospectively was dismissed.

Issue 2: Applicability of notification dated 25-9-1958 to foreign currency transfers made in 1974-75
The petitioner claimed that the 1958 notification was not applicable to them. However, it was established that the show-cause notice issued to the petitioner in 1974-75 for transferring foreign currency to unauthorized dealers was based on the 1958 notification as amended in 1974. Therefore, the court rejected the petitioner's argument that the 1958 notification did not apply to them.

Issue 3: Jurisdiction of the authorities in imposing penalties for contravention of the Foreign Exchange Regulation Act
The Special Director of Enforcement found the petitioner guilty of contravening the Act and imposed a penalty, which was upheld in the appeal. The appellate authority determined that the petitioner, though a foreign citizen, was permanently residing in India since 1973. The court held that the determination of permanent residency status is a factual finding, and since both lower authorities had found the petitioner to be a permanent resident, there was no legal error in the decision to impose the penalty.

Issue 4: Determination of permanent residency status of the petitioner
The court affirmed the findings of the lower authorities that the petitioner was a permanent resident of India since 1973. As this was considered a factual determination, the court declined to interfere in the absence of any legal error apparent on the record.

In conclusion, the court dismissed the petition, ruling that the contentions raised by the petitioner lacked merit. The rule was discharged, and no costs were awarded.