1995 (11) TMI 488 - AT - FEMA

Summary

Issues:
Violation of sections 16(1)(a), 14, 8(1), and 9(1)(a) of the Foreign Exchange Regulation Act, 1973.

Analysis:
The appellant was charged with contravention of various sections of the Foreign Exchange Regulation Act, 1973. The charges included earning a commission and transferring foreign exchange, failure to offer foreign exchange for sale, delaying the receipt of foreign exchange, and owning foreign exchange without offering for sale. The Adjudicating Officer found the appellant guilty and imposed a cumulative penalty of Rs. 52,000. The appellant challenged the order on multiple grounds.

The appellant argued that the penalty imposed was not legally sustainable as separate charges were framed, but the penalty was cumulative without specifying the quantum for each charge. The appellant also presented evidence of remittances to support the claim that the full commission amount had been received in India through normal banking channels. The discrepancy in remitted amounts was attributed to exchange rate fluctuations.

Regarding the charge of contravention of section 14, the appellant explained that a credit note entry neutralized a previous debit entry, indicating no right to receive the amount in question. Thus, the charge under section 14 was deemed misconceived.

The charge under section 16(1)(a) was challenged on the grounds that there was no evidence of RBI direction for securing foreign exchange receipt, as required by the Act. The absence of a specific period for foreign exchange receipt made it difficult to establish delay, and the Adjudicating Officer failed to consider the lack of evidence regarding the due date for receipt.

The appellant successfully argued that Process Instrumentation, a proprietary concern, should not be treated as a company under the Act. The Tribunal set aside the impugned order, directing the refund of the pre-deposit amount to the appellant within 45 days. Ultimately, the findings of contravention of the Act's sections were deemed unsustainable, leading to the appeal's success and the order's reversal.