2008 (9) TMI 553 - HC - Companies Law

Penalty imposed - contravention of section 10(6) of Foreign Exchange Management Act, 1999 - Held that - The violation which has been done by the appellant/petitioner, cannot be stated to be a technical violation and it is well-settled law that contravention of the said Act or Foreign Exchange Regulation Act, 1973 has created a strict liability. The violation of these two Acts would come within the meaning of economic offence and cannot be treated as technical offence. Hence after initial committal and/or contravention of section 10(6) of the said Act, the violation continues till the time, compliance is made. Therefore, we hold that taking over the charge of the appellate-company in the year 2002, cannot absolve the appellant from the liability and, in our considered opinion, the appellant- company correctly held as guilty on the face of the continuance of the offence. Penalty confirmed - Appeals are dismissed.

Issues Involved:
1. Contravention of section 10(6) of the Foreign Exchange Management Act, 1999.
2. Liability and responsibility of the appellant and its Managing Director.
3. Applicability of section 42(1) of the Foreign Exchange Management Act, 1999.
4. Compliance with the Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulations, 2000.

Issue-wise Detailed Analysis:

1. Contravention of Section 10(6) of the Foreign Exchange Management Act, 1999:
The adjudicating authority imposed a penalty of Rs. 10 lakhs each on the appellant company and its Managing Director for failing to utilize the foreign exchange received for importing refrigeration machinery. The appellants were found to have contravened section 10(6) of the said Act by not submitting the Bill of Entry, which is essential to complete import formalities. The appellate authority and the Tribunal upheld this finding, emphasizing that the foreign exchange was not used for the declared purpose.

2. Liability and Responsibility of the Appellant and its Managing Director:
The appellant argued that the contravention occurred due to the previous management's failure to disclose the terms of the EPCG License. However, the court held that the new management, which took over in 2002, was still responsible for ensuring compliance. The court noted that the violation is a continuing offence, and the new management's failure to take reasonable steps to rectify the situation did not absolve them of liability.

3. Applicability of Section 42(1) of the Foreign Exchange Management Act, 1999:
The appellant contended that under section 42(1), they should not be liable as the contravention occurred without their knowledge and despite due diligence. However, the court found that the appellant did not exercise due diligence to prevent the contravention. The court emphasized that economic offences under the said Act create strict liability, and the appellant's failure to comply with the provisions of the Act continued the offence.

4. Compliance with the Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulations, 2000:
The court highlighted that the appellant failed to comply with the regulations requiring the submission of the Bill of Entry within 60 days of acquiring foreign exchange. The regulation mandates that foreign exchange must be utilized for the declared purpose or surrendered within the specified period. The appellant's non-compliance with these requirements further substantiated the contravention under section 10(6) of the said Act.

Conclusion:
The court concluded that the violation by the appellant was not a technical one but a significant economic offence. The court upheld the decisions of the appellate authority and the Tribunal, affirming the penalties imposed on the appellant company and its Managing Director. The appeals were dismissed, and the court emphasized the importance of strict compliance with the provisions of the Foreign Exchange Management Act and the associated regulations.

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