2010 (9) TMI 470 - HC - FEMA

Penalty - foreign currency seized foreign currency found in possession of Respondent while checked about the rates of foreign exchange with the said shop-keeper where search operation was in progress Held that - preparation or intention to commit an offence cannot be equated with the commission of the offence itself - Appellant had made inquiries about the price of foreign currency but not progressed further as he had been accosted by the officers of the Directorate - no merit in the Appeal - accordingly dismissed

Summary

Issues:
Appeal against order of Foreign Exchange Regulation Appellate Board setting aside Assessment Director's order.

Analysis:
The case involved an appeal challenging the order passed by the Foreign Exchange Regulation Appellate Board, which set aside the Assessment Director's order. The Enforcement Director received information about illegal foreign exchange activities at a jewelry shop and conducted a search where foreign currency was seized from the respondent. A show cause notice was issued, and the respondent's wife explained that he was a driver who had taken a loan abroad and needed to exchange currency upon arrival in India. The Assistant Director confirmed the show cause notice, leading to an appeal by the respondent. The Appellate Board allowed the appeal, stating that the offense was not completed as the respondent had only inquired about exchange rates. The High Court upheld the Board's decision, emphasizing that preparation for an offense does not equate to its commission. The court found no fault with the Board's order and noted that no substantial question of law was raised during the appeal's admission in 1988.

In conclusion, the High Court dismissed the appeal, affirming the Appellate Board's decision. The court agreed with the Board that the respondent's actions did not amount to the commission of the offense under the Foreign Exchange Regulation Act. Emphasizing the distinction between preparation for an offense and its actual commission, the court held that the respondent had not progressed beyond inquiry due to intervention by enforcement officers. The court also highlighted that no substantial question of law had been raised during the appeal process, further supporting the dismissal of the appeal.