2024 (3) TMI 600 - HC - FEMA

Offence under FEMA/FERA - Levy of penalty - Review petition - proceedings against matter had gone up to the Hon ble Apex Court and the SLP had been dismissed - taking or refraining from taking action which had the effect of securing receipt of the full export value of the goods exported from the country of final destination had been delayed beyond the prescribed period in contravention of Section 18 (2) of the FERA read with notification dated 01.01.1974 issued by the Central Government - penalty imposed upon the appellants and the proforma respondent vide order dated 14.07.2009 (Annexure A-4), they were directed to make a pre-deposit of 10% of the amount of penalty within a period of 30 days HELD THAT - Section 19 of FEMA deals with appeals to the Appellate Tribunal and provides that any person appealing against the order of the Adjudicating Authority levying any penalty shall, while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the Central Government. The proviso lays down that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship, the Appellate Tribunal may dispense with such deposits, subject to such conditions as it may deem fit to impose so as to safeguard the realization of penalty. Strangely enough, after the dismissal of the SLP, instead of complying with the order and depositing the 10% amount, the appellants and the proforma respondent filed a review petition before the Appellate Tribunal. It was pleaded before the Appellate Tribunal that the appellant company was willing to tender the amount and that in case the order was not reviewed, the delay in depositing the amount be condoned. The review petition was, however, dismissed vide order dated 24.06.2015 (Annexure A-6). Thereafter, the proforma respondent filed CWP before this Court, which was decided 2017 (8) TMI 1723 - PUNJAB AND HARYANA HIGH COURT and the condition of pre-deposit of the 10% of the penalty amount was set aside. The stand taken before the Co-ordinate Bench in the writ petition (IBID) was that the proforma respondent had never been the Director of the company and that she was only a Director in M/s Sachdeva and Sons Rice Mills Ltd. which was a separate legal entity. This stand was accepted and the writ petition was allowed. It would be essential to notice that all this while, the matter having gone up to the Apex Court was concealed. After the aforesaid decision, the appellants filed a review petition before the Appellate Tribunal which was dismissed by way of order dated 06.06.2019, leading to the filing of the present appeal. The Appellate Tribunal dismissed the review petition by observing that repeated petitions were being filed and one such review petition had already been dismissed on 24.06.2015 - Here also, it appears that the Tribunal was not apprised that the matter had already been decided by the Apex Court. Undeterred by all proceedings which had gone against the appellants, the appellants preferred the present appeal. In the considered opinion of this Court, the present appeal is nothing but a gross abuse of the process of law. The appellants have misled the Courts at every step and despite the matter having been finalized by the Apex Court, the appellants have raked up the same in subsequent petitions. The conduct of the appellants is highly deprecated. Once the matter had gone up to the Hon ble Apex Court and the SLP had been dismissed, no further proceeding would lie. In the present appeal, the appellants have selectively filed documents and have also made attempts to mislead this court

Summary

Issues:
The judgment involves the dismissal of a review petition by the Appellate Tribunal, challenging the penalty imposed under the Foreign Exchange Management Act, 1999 (FEMA) on the appellants for violations related to export transactions.

Issue 1: Challenge to Penalty Imposed
The appeal challenged the penalty imposed on the appellants for violating FEMA provisions related to export transactions. The penalty was initially imposed by the Adjudicating Authority under Section 50 of the FERA, which was later reviewed by the Appellate Tribunal. The appellants argued that they lacked the financial capacity to make the required pre-deposit of the penalty amount, seeking complete waiver for filing the appeal.

Issue 2: Review Petition and Dismissal
After various legal proceedings and appeals, including a review petition before the Appellate Tribunal, the appellants continued to challenge the penalty. Despite previous dismissals and a final decision by the Hon'ble Apex Court, the appellants filed a review petition seeking to condone the delay in depositing the required amount. The review petition was ultimately dismissed by the Appellate Tribunal, leading to the present appeal.

Conclusion:
The High Court dismissed the present appeal, condemning the appellants' conduct as a gross abuse of the legal process. The Court criticized the appellants for misleading the courts at every step and attempting to reopen a matter that had been conclusively decided by the Hon'ble Apex Court. The Court found the appeal devoid of merit and highlighted the appellants' selective filing of documents and attempts to mislead the court. Consequently, the appeal was dismissed, emphasizing that no further proceedings were permissible after the matter had been settled by the highest court.