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FEMA - Case Laws
Showing 321 to 340 of 1378 Records
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2017 (12) TMI 396
Revisional jurisdiction under the FERA - Notice of contravention of Section 51 of FERA was taken by the Adjudicating officer within two years from the date of the repeal of FERA - Held that:- In the facts of the present case, the appellant is not without a remedy in the sense that a recourse can be taken to the remedies under the Constitution of India. The principle which governs Mimansa interpretation is that if a word or sentence purporting to express a subordinate idea clashes with the principal idea, the former must be adjusted to the latter or must be disregarded altogether. Where there is a conflict between the object and material, the object is to prevail the material being subordinate to the object. Learned Counsel appearing for the appellant laid emphasis on the Mimansa principles by submitting that in absence of prescribed material, a substitute can be used.
We fail to understand how Mimansa principles can advance the cause of the appellant any further. In the present case, we are dealing with the revisional jurisdiction. As in case of an appeal, a revision is always creation of a Statute. There is no inherent power vesting in any appellate authority or superior authority to exercise the power of revision. Moreover, the remedy of revision is never as matter of right. Mimansa principles will not revive a nonexisting remedy of revision. Therefore, we cannot accept the submission made by the learned Counsel appearing for the appellant based on Mimansa principles. Even if we apply Mimansa principles, it is impossible to accept the submission that a remedy of revision under the repealed Act was available to the appellant. Hence, we see no merit in the appeals. Appeals and Civil Applications are dismissed.
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2017 (11) TMI 1957
Mesne profits - suit for declaration of title and possession, recovery of possession of plaint A and B schedule properties in case the defendants are found in possession of the same, and for perpetual injunction - A relief of mandatory injunction has also been sought for, for directing the defendants to vacate the plaint B schedule property - HELD THAT:- Section 32(c) of the Registration Act, 1908 also deals with power of attorney. There also, it has been specifically stated that it should be a power of attorney executed and authenticated. When Ext. A2 was not executed and authenticated within the meaning of the said provision, that could not have been relied on for permitting the execution and registration of Ext. A3. Moreover, Ext. A2 cannot be said to be a document attested within the meaning of Section 3 of the Transfer of Property Act also.
This is a case wherein even though the plaintiff had agreed in cross-examination that she was ready to examine the executants through video conferencing, the said facility was ultimately not made available. The reason mentioned by the courts below for the same is that the Malaysian Government did not grant permission. The said version is one coming from the mouth of the plaintiff alone, that too, without any documentary evidence. There is absolutely nothing to show that permission was sought for from the Malaysian Government for the said facility and the said facility was denied by the Malaysian Government.
The suit is one for declaration of title and recovery of possession. When the reliefs of declaration and recovery of possession based on title have been sought for, the plaintiff has to stand on her own legs to prove that she has title. The weakness of the defence or the absence of title on the part of the defendants cannot be encashed by the plaintiff to prove the title of the plaintiff. From all the above, this Court is satisfied that both the courts below have gone wrong in decreeing the suit. The impugned judgment and decree passed by the lower appellate court as well as the trial court are liable to be set aside. The suit is only to be dismissed.
In the result, this Regular Second Appeal is allowed and the judgments and decrees passed by both the courts below are set aside. The suit is dismissed. In the nature of the RSA, there is no order as to costs. All pending interlocutory applications in this appeal are closed.
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2017 (11) TMI 839
Revision petition u/s 19(6) of FEMA against the order of penalty - contentions of the respondent is that revision petition filed by the revisionist is not maintainable as there is no specific provision in the Act - Held that:- As gone through provisions of section 16 which provides for appointment of Central Government Officers as at Adjudicating Authority for holding an inquiry for the purpose of imposing any penalty against the respondent. As informed that after passing the impugned order no complaint against the respondent was filed against the order passed by the Adjudicating Authority who has imposed the penalty nor any inquiry is conducted in this regard under section 16 of the Act as provided under sub-section 6 of section 19.
Under these circumstances, there is a force in the submissions of learned counsel for the respondent that the revision petition filed by the appellant is not maintainable. The penalty amount as per impugned order has been deposited by the respondent. Thus revision petition is accordingly dismissed.
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2017 (11) TMI 618
Non-realisation of export sale proceeds - Proceedings as contemplated under Section 18(2) & 18(3) read with Section 68(1) & 68(2) of FERA - Held that:- It is evident that the Appellant joined as Director solely in the capacity of advisory role and was specifically excluded from the day to day operations of the company as evidenced from the correspondence. There cannot be any adverse inference against the Appellant‟s role as to its involvement in the exports or realization of the proceeds. Unless country is established particularly when Noticee No. 14‟s being not above suspicion has been given the benefit and no penalty imposed upon him. Rule of equality would apply in this matter. Discrimination of the department cannot be accepted.
The impugned order deals with the violations committed by the persons in charge of MVR Group of companies. The Appellant was neither part of the management managing the affairs of the MVR group of companies nor was he in any way concerned with the company. This fact has been clearly acknowledged by the Adjudicating Authority while passing the impugned order. Yet the Adjudicating Authority chooses to impose the penalty on the Appellant. Having found nothing against the Appellant, the Adjudicating Authority ought not to have imposed the penalty.
In the impugned order the Adjudicating Authority found nothing against the Appellant, however, the Special Director observes erroneously that the Appellant ought to have exercised due diligence in knowing the details of the company and his responsibilities which he failed to do so and thereby rendered himself responsible to the non-realisation of export sale proceeds and thus contravened the provisions of Section 18(2) & 18(3) of FERA.The impugned order suffers from legal infirmities and the same is liable to be set aside.
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2017 (10) TMI 1129
Investigation and enquiry into violation of FEMA and the Rules and Regulations - Held that:- Any investigation undertaken with an intention to unearth violations of provisions of FEMA cannot be characterized as motivated or malicious merely because before initiation of such proceeding, an award had been passed against the Central Government regarding alleged breach of contract entered into between the Government and the Company. Alleged breach of contract is one thing and violation of FEMA is totally another thing. This Court cannot interfere in the matter to stall the investigation and enquiry by the adjudicating authority. In such matters all such allegations can be pleaded, demonstrated and proved by way of reply to show cause notice. Prima facie I am of the view that such bare allegations cannot form basis for stalling investigation and enquiry into violation of FEMA and the Rules and Regulations framed thereunder.
As rightly contended by learned Additional Solicitor General hapter V of FEMA read with Rules framed, provides a complete network of provisions adequately structuring rights and remedies available to a person who is aggrieved by any adjudication under FEMA. In the instant case once a reply is submitted to the show cause notice, the adjudicating authority may take a decision to proceed in the matter or not to proceed. In case it decides to proceed, full opportunity will have to be provided to petitioners. If it is found that petitioners were guilty, then there is a provision to appeal to the Appellate Tribunal. If any person is aggrieved by any decision or order of the Appellate Tribunal, he may file an appeal to the High court.
Thus, it is clear that the Act and the rules framed provide sufficient mechanism for redressing the grievance of petitioners. In such circumstances, merely on the basis of certain allegations of malafides, this Court cannot entertain the writ petition to quash the show cause notice or the complaint exercising jurisdiction under Article 227. It will tantamount to preventing investigation and enquiry into violations of serious nature which may affect the economic fabric of the Country. Truth will, in anyway, ultimately emerge.
Therefore, keeping open all contentions of petitioners and reserving liberty to them to avail the remedies provided under the provisions of the Act read with the Rules and Regulations framed thereunder, these writ petitions are dismissed.
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2017 (10) TMI 909
Registration under Section 12 of the Foreign Contribution (Regulation) Act, 2010 (“FCRA”) rejected - Grant of certificate of registration under FCRA - the respondent is not satisfied that the foreign contribution is not likely to be used for personal gains - petitioner is a society registered under the Societies Registration Act, 1860 and has been registered under Section 12A of the Income Tax Act - Held that:- The question whether a society established for charitable/religious purpose is one of the principal considerations for grant of exemption under Section 11 and 12 of the Income Tax Act, 1961. One of the pre-condition for availing exemption from charge of Income Tax is that the charitable society/trust would utilise all funds for the purposes of its object and no part of it can be distributed as dividends or profits. Any society/trust which is run for the commercial benefits of its founders or trustees would plainly be ineligible for being accorded the certificate under Section 12A of the Income Tax Act. This is also the principal consideration, which is set out in Section 12(4)(vi) of the Act.
Notwithstanding the registration granted to the petitioner under the Income Tax Act, the permission sought by the petitioner could have been refused if there was any evidence to show that the foreign contribution is likely to be used for personal gains or diverted for undesirable purposes. But, as stated earlier, there is no material to indicate that these conditions were satisfied. There is no material which would justify the conclusion that the petitioners were likely to divert the foreign contribution for personal gains or utilise it for any undesirable purposes. In this view, the impugned orders cannot be sustained and are consequently, set aside.
The respondents are directed to process the petitioner's application for registration under Section 12 of the FCRA, as the only ground on which the same was denied is unsustainable.
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2017 (10) TMI 908
Review application - Held that:- It is pertinent to mention that the order dated 16.07.2016 has not been challenged by the appellant/applicants in the higher court. It has become final. The amount fixed in the said order has not been deposited and it is apparent that the appellants have no intention to deposit the same.
We are of the view that the review application filed by the appellant/review applicant is not maintainable as the applicant has failed to demonstrate any error apparent on the face of the record on the order passed by this court and is trying to re-argue its case as if it was an appeal which is beyond the scope of the Order XLVLL Rule 1 CPC and as such the review application is liable to be dismissed. An application for review cannot be entertained only for the purpose of rehearing of the case [See K.A. ANSARI & ANR Versus INDIAN AIRLINES LTD [2008 (11) TMI 668 - SUPREME COURT]
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2017 (10) TMI 461
Detention at the airport at the instance of the Enforcement Directorate - Look Out Circular (LOC) was issued by the Enforcement Directorate - violation of FEMA - Proceedings under PMLA - Held that:- In the present case, the LOC does not indicate any credible reason for issuing the same. Plainly, recourse to LOC cannot be taken as a matter of course; restricting the right of a citizen to travel is a serious imposition on his/her fundamental rights and even if it is assumed that such action is permissible in law, it can be taken only when necessary and for good reason.
This Court also finds it difficult to understand the conduct of the officers of the Enforcement Directorate. Admittedly, the petitioner had joined the investigations and had appeared before the concerned officers as required by them. Notwithstanding the same, a request for LOC was issued and the petitioner was not even informed of such LOC. Notwithstanding the legality or validity of the LOC, the petitioner would have taken that into account before making his travel plans. The petitioner became aware of the LOC at 11.00 PM on 22.08.2017, when he was about to board a flight.
Thus, insofar as the LOC issued is concerned, the same is wholly unsustainable. Accordingly, the LOC issued against the petitioner is set aside.
However, considering that the Enforcement Directorate is continuing with the investigation and may require the attendance of the petitioner.
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2017 (10) TMI 460
Condonation of Delay - reason i.e. the premises of the appellant firm lying locked and shifting of residence by the appellants as well as the chamber of the counsel of the appellant has been stated - Held that:- As stated earlier, by an order dated 11th May, 2009 this Tribunal had directed the appellants to deposit 20% of their amount of penalty along with submissions of unconditional bank guarantee of remaining 30% within a period of 45 days from 11th May, 2009 failing which the appeal would stand dismissed on this ground alone. The appellant cannot be permitted to change its stand.
The above directions of this Tribunal have not been followed by the appellant till date. No sufficient cause has been given by the appellant for not depositing the pre-deposit amount till date. It is also observed that the appellant was aware of the proceedings. As further observed that the reasons given for Condonation of delay in filing the restoration application is rather vague and devoid of merits. As such, the above appeals/applications are dismissed. No sufficient cause has been shown in the applications. The grounds taken in the applications are vague and general in nature.
However, in the interest of justice, equity and fairplay we still gave the offer to the appellant's counsel that in case the appellant complies with the order of this Tribunal dated 11.05.2009 and deposit 20% of their amount of penalty along with submissions of unconditional bank guarantee of remaining 30% within a period of 30 days from the date of this order, then this Tribunal would consider the request of restoring the appeal. There was no positive response on behalf of appellant counsel for the appellant is trying to raise the stay application again by stating that the penalty has been imposed incorrectly. Thus, there is no valid justification on behalf of the appellant. As such, the application for restoration for appeal and Condonation of Delay are dismissed.
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2017 (10) TMI 459
Proceedings contemplated under Section 51 of FERA, 1973 - Held that:- In the case of Shri Joji Thelliankal, who had acted as an agent to identify NRE account holders, there was no fool proof evidence on record, to establish that Shri Joji Thelliankal received premium amount and thus it was found by the trial court that there is no corroborative evidence except the statements. It was held that no other evidence on the records placed to show that Shri Joji Thelliankal was indulging in any money transfer business. Therefore, the benefit of doubt was given to Shri Joji Thilliankal in the absence of any cogent evidence, as both David Mathew and Monikutty Augustine have denied for having taken part in any such translation knowingly. Therefore no penalty was imposed any penalty on Shri Joji Thailliankal, although it was found that he contravened the provisions of Section 9(1)(b) of the Foreign Exchange Regulation Act, 1973.
However, it is the admitted position that Shri P.R. Ganapathy who did not dispute the receipt of the money both in his reply to the Memorandum and during the personal hearing before the Authority. He only attempted to project it as investment from friends. It is correctly mentioned in the impugned order that his denial that he had not given money in return for the cheques/DDs as the statements recorded rather confirmed that the cheques/DDs were received after making payment in cash. Admittedly penalty amount has been deposited by the appellant. I totally agree with the impugned order passed against Shri P.R. Ganapathy. There is no infirmity in the order. Even I am of the view that routine small function such a big amount is not possible to receive as gift from NRI. It is evident that against the gift amount, the cash must have been given by the appellant.
As the amount in question was unaccounted sources for his own benefit and directly involved in the contraventions of the provisions of Section 9(1)(d) of FERA, 1973.
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2017 (10) TMI 352
Partially dispensing with deposit of the penalty amount - order passed exercising the power under second proviso to Section 19(1) of the Foreign Exchange Management Act, 1999 - Held that:- It is relevant to state that an appeal would lie to the High Court under Section 35 of the Act on any question of law arising out of the order passed by the Appellate Tribunal. On the facts of the case, it can’t be said that the discretion exercised by the Appellate Tribunal in directing to deposit only 10% of the penalty and furnishing security (otherwise than bank guarantee) for 40% of the penalty is unreasonable or arbitrary to warrant interference. In our opinion, no question of law arises for consideration in this appeal. The appeal is devoid of merit and it is accordingly dismissed.
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2017 (9) TMI 491
Offence under Foreign Exchange Management Act, 1999 - penalty imposed - reason to believe for default - Held that:- From the perusal of the SCN, it is clear that the, details furnished by the respondent department in the SCN, were vague and sketchy at best, for the appellant to trace back the contentious transaction of DM16000, which happened eight years back with respect to the time when the first letter was sent to the appellant Company by the respondent Department.
As during the course of adjudication proceedings, it was observed that out of the seven contentious remittances, two were repetition. Strong inference can be drawn from there, to show that there was a lot of laxity on part of the respondent department to even ascertain, prima facie, the authenticity of the contentious remittances, in relation to which they started the adjudication proceedings. Considerable doubt is thus, cast upon the claims of the respondent with respect to the remittance in question (DM16000) also, as there can be a likelihood situation that the appellant company never made such a remittance as has been claimed by their learned counsel since the time the appellant company established their first communication with the respondent department, in relation to the allegations against them with respect to the then seven contentious remittances. The contention of the respondent that since the appellant company has been able to justify six remittances, then they should have been able to justify the one in question also, is superfluous and without merit.
Thus it is evident that the respondent department has failed to establish the violation beyond reasonable doubt, on the account of the appellant. For the reasons abovementioned, the impugned order dated 04.04.2016 is quashed and set aside. The appeal is allowed.
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2017 (9) TMI 127
Interest on the amount of the Award - Payment of actual rate of interest earned by the respondent on the amount seized and confiscated from the petitioner - accretion to the amount seized from the petitioner - Held that:- In the present case it is admitted that the respondent had received interest amounting to ₹1,64,52,470/- on the separate fixed deposit created from the currency seized. However, it is seen that the respondent has paid only a sum of ₹1,19,09,803/- as interest. Thus, the respondent is directed to refund the balance amount of ₹45,42,667/- (₹1,64,52,470/- minus ₹1,19,09,803/-).
The respondent has also provided no justification for not paying the amount of interest along with the amount seized. Even according to the respondent, a sum of ₹1,19,09,803/- was payable to the petitioner on 25.10.2012. However, this amount was paid by the respondent on 05.04.2013, and there is no explanation, whatsoever for retaining the amount. The petitioner has been deprived of the use of the said funds and, thus, is entitled to be compensated for the same. There are numerous decisions, where the Courts have awarded interest as compensation for denial of the right to utilise the money due. In Thazhathe Purayil Sarabi & Ors v. Union of India (2009 (5) TMI 966 - SUPREME COURT) the Supreme Court observed that “As has been frequently explained by this Court and various High Courts, interest is essentially a compensation payable on account of denial of the right to utilise the money due, which has been, in fact, utilized by the person withholding the same. Accordingly, payment of interest follows as a matter of course when a money decree is passed”.
Thus, this Court is of the view that the respondent be also directed to pay interest at the rate of 6% per annum on the said sum of ₹1,19,09,803/- (which was concededly due to the petitioner on 25.10.2012) for the period from 25.10.2012 to 05.04.2013.
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2017 (8) TMI 1723
Violation of Section 50 of the Foreign Exchange Regulation Act - Condition of pre-deposit of 10% of the penalty amount imposed for hearing of the appeal - HELD THAT:- We are not opining finally on the merit of the controversy as the issue is pending before the Tribunal. There is prima facie, merit in the case set up by the petitioner. There is a certificate produced from the Chartered Accountants of the writ petition certifying that the petitioner had never been the director of the company, namely, M/s Sachdeva & Sons Industries (P) Limited.
Petitioner was a director in M/s Sachdeva & Sons Rice Mills Limited, a separate legal entity, which was a partner in firm M/s Sachdeva & Sons Industries. On dissolution of M/s Sachdeva & Sons Industries, partnership firm on 5.5.1997, M/s Sachdeva & Sons Industries (P) Limited, came into existence, which took over the business of M/s Sachdeva & Sons Industries, but the petitioner was not inducted as director in the newly incorporated company. There is nothing on record to suggest otherwise. Once, prima facie, on the basis of material produced on record before this Court, it is found that the petitioner was not the director in the company, namely, M/s Sachdeva & Sons Industries (P) Limited, directing her to deposit part of penalty as precondition for hearing of her appeal on merits will certainly cause undue hardship to her. Hence, in our view, the condition of pre-deposit of 10% of the penalty amount imposed on her for hearing of the appeal filed by her and pending before the Tribunal deserves to be set aside.
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2017 (8) TMI 1307
Detention orders - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (“COFEPOSA Act”) against the husband of the petitioner - Held that:- No ground to interfere with the impugned order oh HC [2017 (7) TMI 73 - DELHI HIGH COURT]. SLP dismised.
HC has held that as discussed the role and position of the detenue in the smuggling ring. The detenue was not a mere carrier and was in-charge of the Delhi operations of the racket as the kingpin Sh.Narendra Kumar Jain was based in Guwahati. It is clear that the activities of the detenue were of a serious nature and perpetrated with a great deal of expertise and coordination. The activities were of a massive scale and had been continuing for about two years. Resort to the law of preventive detention was justified.
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2017 (8) TMI 1016
Provision of Section 78 of the Foreign Exchange Regulation Act, 1973 and Section 44 of the Act applicability - Held that:- The petitioner who had come to India from foreign country, wanted that their NRI Account/FCNR Account may be continued in the same status. It was a kind of privilege claimed. Such status could be accorded only within the permissible parameters and in accordance with law by the Reserve Bank of India. It is difficult to conceive that the petitioners' claim to maintain status of FCNR Account could be asserted as enforceable right. It was only a kind of benefit offered to such class of persons. The petitioners cannot enjoy such benefit when they did not comply with the conditions.
For all the aforesaid reasons and grounds, the petition is bereft of merits. No relief is liable to be granted to the petitioner. Therefore, the petition is dismissed with cost of ₹ 20,000/- which shall be deposited by the petitioner with Gujarat High Court Legal Aid Committee on or before 31st August, 2017 and the receipt shall be produced with the Registry. Rule stands discharged.
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2017 (8) TMI 756
Forfeiting the properties as order passed under section 7 of the SAFEMA, 1976 - purview of the term “associate” / "relative" - connection with alleged illegal activities of the detenu - Held that:- The only activities that have been stated in this regard are that the appellant assisted AP-1 to assume the name of Sanjay Srinath Rana and to obtain documents like Ration Card and Passport in the assumed name and that the detenu resided in the residence of the appellant through November, 2004 to April, 2005. We are of the view that the said activities by themselves would not bring the appellant within the purview of the term “associate” on the basis that she was managing the affairs of or keeping the accounts of AP-1 The explanation of the appellant in this regard is that certain documents had been given by her to AP-1/detenu to help her in obtaining the passport for her blind son Nishant Rana, which was misused by him to obtain a passport for himself in an assumed name using the same set of documents.
There is also no evidence whatsoever that may indicate that the appellant was involved in the alleged illegal activities of the detenu/AP-1 in any manner whatsoever. The period of stay of the detenu at the appellant”s premises is also from November, 2004 to April, 2005 whereas the alleged illegal activity of AP-1 was of a later period viz. October, 2005. It is also observed that the impugned order is totally silent as to under which clause of the definition of associate, the appellants case is covered. We therefore find that the finding of the lower authority that the appellant would be covered within the term “associate” as defined in the Act is unsustainable.
We find that the appellant cannot be considered as the wife of the detenu/AP-1 and hence not covered under the term “relative” as defined in the Act. She is also not covered within the definition of the term “associate” of detenu/AP-1 as defined under the Act. Consequently, she does not qualify as a person covered by the provisions of SAFEMA and accordingly the provisions of SAFEMA are not applicable to her. In conclusion, we find that the impugned order is unsustainable in law.
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2017 (8) TMI 671
Illegally acquired property within the meaning of Section 3(1)(c) of SAFEMA - whether tenancy of a property, ownership of which is acquired by a person to whom the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) applies, will be treated as “illegally acquired property” within the meaning of Section 3(1)(c) of SAFEMA and can be subjected to forfeiture under the provisions thereof? - Held that:- In the present case, it is undisputed that only adjudication which has taken place by the competent authority is that the property was owned by the person to whom the Act applied i.e. against whom the order of detention had been confirmed. The rights of the appellants, who claim to be bona fide tenants even prior to purchase of the property by the person to whom the Act applied, have not been adjudicated upon on the assumption that their rights will stand automatically terminated. In view of above, we are of the view that rights of a bona fide tenant will not stand automatically terminated by forfeiture of property and vesting thereof in the Central Government. Such forfeiture will extinguish the rights of the person to whom the Act applies in the present case Krishna Budha Gawde, who was the owner of the property in question or his relative or associate having nexus with him in relation to the said property. However, we do not express any opinion whether the appellants are the bona fide tenants and had no nexus with the acquisition of the property by the person to whom the Act applied as claimed by them. This question needs to be determined independently by the competent authority as defined in Section 3(b) of the Act.
Accordingly, we allow this appeal, set aside the order of the High Court and remit the matter to the competent authority for passing an appropriate order in accordance with law. The parties are directed to appear before the competent authority for further proceedings on 9th October, 2017.
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2017 (8) TMI 574
Disobedience to respond to the summons issued under Section 40(3) FERA - offence under Section 56 of FERA, 1973 - Held that:- This point has come up for consideration before this Court in Enforcement Director and Anr. v. M.Samba Siva Rao and Ors. (2000 (5) TMI 586 - SUPREME COURT OF INDIA). Due to the divergence of opinion of the High Courts of Kerala, Madras on one hand and High Court of Andhra Pradesh on the other, a three Judge Bench of this Court considered the matter and held as clauses (i) and (ii) of Section 56(1) are material for deciding the quantum of punishment and further, there is no reason why the expression “in any other case” in Section 56(1)(ii) should be given any restrictive meaning to the effect that it must be in relation to the money value involved, as has been done by the Kerala High Court. The summons issued under Section 40, if not obeyed, must be held to be a contravention of the provisions of the Act and at any rate, a contravention of a direction issued under the Act, and therefore, such contravention would squarely come within the ambit of Section 56 of the Act.
The question of service under Section 40(3) of FERA, 1973 not being effected on the Respondent is irrelevant at this point of time as he was represented by an Advocate before the Trial Court. It appears that the Respondent is not interested in these proceedings. In any event, the judgment of the High Court cannot be sustained as it is contrary to the law laid down by this Court in Enforcement Director and Anr. v. M. Samba Siva Rao and Ors. (supra).
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2017 (8) TMI 423
Alternative remedy of appeal - Guilty for contravention of the provisions of Section 3(c) of the Foreign Exchange Management Act, 1999 - Held that:- When the statutory alternative remedy of appeal is available, the High Court should not entertain an application under Article 226 of the Constitution of India. When a right or liability is created by the statute, the High Court must insist that before availing remedy under Article 226 of the Constitution of India, a person must exhaust the remedies available under the relevant statute. However, the same is subject to certain exceptions which do not attract the present case and do not call for interference to the facts of the instant case.
Writ petition is disposed of directing petitioner Nos.2 to 4, who are the legal representatives of deceased petitioner No.1, to file an appeal before the Special Director (Appeals) under Section 17 of FEMA and if such an appeal is filed within a period of forty five (45) days from today, the appellate Forum shall consider the question of limitation having regard to the provision of Section 14 of the Limitation Act, 1963 and also having regard to the fact that petitioner Nos.2 to 4 were bona fidely pursuing their case under Article 226 of the Constitution of India before this Court. Along with the appeal, petitioner Nos.2 to 4 shall also make an application seeking interim order which shall also be dealt with. If an application seeking interim order is filed along with the appeal, the authority shall dispose of the same within a period of six (6) to eight (8) weeks from the date of filing of the said application in accordance with law.
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