1996 (8) TMI 572 - AT - FEMA

Summary

Issues:
1. Imposition of penalties under sections 14 and 9(1)(a) of the Foreign Exchange Regulation Act, 1973.
2. Requirement of pre-deposit for appeal under section 52 of the Act.
3. Determination of appellant's status as a resident in India.
4. Interpretation of evidence and documentary proof regarding appellant's intention to settle in India permanently.

Analysis:
1. The judgment involves penalties imposed on the appellant under sections 14 and 9(1)(a) of the Foreign Exchange Regulation Act, 1973. The appellant was penalized for contravention of these sections based on allegations in Show-Cause Notices (SCNs) I and II. Another SCN (SCN III) was issued but the appellant was exonerated of the charge under that notice.

2. The issue of pre-deposit for appeal under section 52 of the Act was raised by the appellant's counsel, who argued for dispensing with the requirement due to the untenability of the impugned order. The appellant contended that being compelled to pre-deposit the penalty amount would cause undue hardship, especially when challenging the order on its merits.

3. The crux of the case revolved around determining the appellant's status as a resident in India. The appellant's counsel argued that the Adjudicating Officer's conclusion was based on assumed facts contrary to the evidence on record. The appellant's intention to permanently settle in India was a key point of contention, with the appellant maintaining that he was a non-resident at the material time.

4. The interpretation of evidence and documentary proof regarding the appellant's intention to settle in India permanently was crucial. The appellant's actions, such as importing a car and closing a foreign account, were cited as indicators of his intention to stay in India indefinitely. However, the tribunal found that these actions did not conclusively prove the appellant's intention to become a resident in India for good.

5. Ultimately, the tribunal found in favor of the appellant, holding that he was not a resident in India at the relevant time. The judgment set aside the impugned order, emphasizing that the charges against the appellant could only be sustained if he was a resident in India. The decision was based on a comprehensive analysis of the evidence and legal provisions, highlighting the importance of factual accuracy in determining residency status under the Act.