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FEMA - Case Laws
Showing 381 to 400 of 1378 Records
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2016 (4) TMI 366
Violation of provisions of FERA by the SBI officials - Validity of summons - making full advance payment to the tune of US$ 38 million without either obtaining any prior permission of the Reserve Bank of India (‘RBI’) or any guarantee from an International Bank of repute situated outside India to safeguard their money - Held that:- petitioners are not covered under Sub-section (ii) of Section 49 of FERA for abetting or not complying with all or any such conditions.
Summoning order dated 30.05.2002 was issued just two days prior to the repealing of the FERA Act as on that day hundreds of such complaints were filed and process was to be issued in all those complaints before 01.06.2002 when new Act in the shape of Foreign Exchange Amendment Act, 1999 (FEMA) was to come into force in place of FERA, 1973. The said summoning order itself shows that the Trial Court has not considered the aspect of criminal liability of the petitioners under Section 68 of FERA having position of subordinate officers other than Managing Directors, Directors and Executive Directors as per the provisions of Section 68 of FERA.
The respondents deliberately and willfully ignored the investigation conducted by CBI whereby, chargesheet at Para 2 confirmed that C.K. Ramakrishnan and D.S. Kanwar who were functioning as Managing Director and Executive Director respectively in the petitioners company were responsible having domain over the funds of the company during the year 1995-96 and they dishonestly in connivance with officials of M/s. Karsan Limited, a Turkish Company and other accused persons, directed the bank officers to remit US$ 38 million to the account of M/s. Karsan Limited. Moreover, the facts of the investigation have been concealed by the respondent before the Trial Court and since the sunset period was expired, therefore, hurriedly without going through the material on record, the Trial Court had issued the summons against the petitioners.
Complains and Summons quashed - Decided in favor of petitioner.
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2016 (2) TMI 1107
Contravention under Section 8 of FEMA, 1999 - liable for the acts or omissions committed by company representative - Held that:- Since the appellant Ole Peter Tollefson has not filed any proof that he actually secured loan from bank in Spain therefore in view of the admission of the execution of the disputed invoice by the appellant, no other inference except that it related to export of building material can be inferred. The appellant company will thus be legally liable for the acts or omissions committed by its representative who happens to be its director and practically all in all in the company. No interference in the findings of the Adjudicating Authority in respect of liability of the appellant company and appellant Ole Peter Tollefson is warranted. Thus it is of the view that the penalty imposed against the appellant company appears to be on the higher side therefore it will be just, fair and proper if the penalty upon the appellant company is reduced to ₹ 4 lakhs instead of ₹ 6 lakhs while maintaining the penalty of ₹ 1.20 lakhs against the appellant Ole Peter Tollefson.
In view of the above, the appeal is dismissed in respect of findings of contravention under Section 8 of FEMA, 1999 r/w relevant regulations and the order of the Adjudicating Authority is affirmed in this respect, however the amount of penalty imposed against appellant company is modified and reduced to ₹ 4 lakhs from ₹ 6 lakhs as has been imposed vide the adjudication order. The amount of penalty imposed against the appellant Ole Peter Tollefson is maintained. It has been informed that total penalty imposed by the Adjudicating Authority has been deposited by the appellants with the Enforcement Directorate. After the expiry of the period of appeal, the surplus amount of ₹ 2 lakhs shall be refunded to the appellant company. Copies of the judgment be sent to both the parties.
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2016 (2) TMI 480
Levy of penalty for Non realization of export proceeds (foreign exchange) within six months of the date of shipment or within the extended period - Held that:- Considering the submission that almost entire sale proceeds have been realized and loss to the exchequer has subsequently been made good therefore, taking a holistic view, we are of the opinion that it will be just and fair in the circumstances that the penalties imposed which are almost half of the amount of alleged amount appear to be excessive and need to be reduced. In our considered view, the amount of penalties imposed may be slashed down to half of the amount of penalties imposed in each case.
The appeals in view of the above are partly allowed. The findings of the Adjudicating Officer holding the appellants guilty of contravening the provisions of FERA is affirmed with reduced penalty.
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2016 (2) TMI 476
Challenge to the RBI (FEMA) circular - validity and legality - Policy in relation to import of Gold - On or about 14th August, 2013, RBI issued another Circular no. 25, referring to the said Circular no. 15 dated 22nd July, 2013, for clarification / modification in supersession of the earlier instructions, and made it incumbent on all nominated agencies to make exclusively available at least one fifth i.e. 20% of every lot of gold imported to the country, for the purpose of exports and the balance for domestic use. Further conditions were also imposed for such import referred as import of gold on 20/80 principle. The said RBI Circular also stipulated that Premier Trading Houses irrespective of whether they are nominated agencies or not, are permitted to import gold exclusively for the purpose of exports only.
Held that:- There are the provisions under which the Central Government through its Ministry of Commerce and Zonal Director General (Joint) of Foreign Trade acted. It was empowered to impose conditions while granting or issuing the Certificates. Pertinently, the conditions at page 83 and the power to impose them are not challenged.
Unable to agree with Mr. Chagla that a conjoint reading of these provisions in the 1992 Act together with the Customs Act, 1962, would not empower the Director General in this case to impose penalty. As we have already held, the Reserve Bank of India has enough powers and, therefore, there is no basis for the complaint that it lacks jurisdiction or authority to regulate the dealings in foreign exchange. In the instant case, the Reserve Bank of India is doing precisely this and, therefore, it neither interferes nor takes over the powers of the competent authority either under the Act of 1992 or the Customs Act, 1962.
Once the certificates in favour of the petitioners were subject to the provisions of the Foreign Trade Policy and the procedure laid down thereunder, the Reserve Bank of India guidelines and Customs Rules and Regulations, then the import of 550 kgs of gold was governed by the same. The show-cause notice alleged that from the import of 550 kgs of gold only 350 kgs of gold was exported and as per the export details 200 kgs of gold was supplied to the domestic unit. This is a violation of the Reserve Bank of India’s Circular. Each of the terms and conditions, either in the certificates relied upon by the petitioners or the Reserve Bank of India guidelines are in consonance with the policy of the Government that precious metals having been brought in they ought to be exported so that the cost of imports could be mitigated by the earnings from export. That would save valuable foreign exchange as well. That is how the diversion in the domestic market was termed as a violation of Reserve Bank of India guidelines.
We have, therefore, no hesitation in concluding that none of the contentions as raised before us by the petitioners have any merit.
The present petitioners raise conflicting pleas and versions only to avoid compliance with the conditions and which are invited by them on their own. The conditions as imposed on them in the Nominated Agency Certificate and which is issued in their favour right from 2010 have never been questioned. In these circumstances, they cannot place any reliance on the Division Bench judgment.
Writ Petition fails. Rule is discharged - Decided against the petitioners.
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2016 (1) TMI 183
Importers who had acquired foreign exchange from their authorized dealers for the purpose of imports of specified goods but had failed to submit the Exchange Control copy of Bill of Entry in respect of the relevant imports to their authorized dealers - It has been contended on behalf of the appellant that an amount of ₹ 410,550 US $ was remitted by IDBI by opening L/C (Letter of Credit). The goods were shipped by the foreign seller and arrived in India passed through the Customs authorities. Copy of the Bill of Entry for Warehousing filed is a proof of the arrival of the goods in India and is a conclusive proof and proceedings ought to have been dropped in this perspective.
Held that:- it is not in dispute that the entire foreign exchange acquired by the appellant has been remitted to the foreign seller and it is also undisputed that the imported goods were stored in a warehouse and as the customs duty and warehousing charges could not be paid by the appellant, the goods were sold. In our considered view, there is no contravention of Section 8(3) or 8(4) of FERA, 1973 as only proof of import of goods has to be filed and Bill of Entry of WH is a valid and convincing proof of the arrival of goods in India. As we have stated earlier, there is no allegation that the foreign exchange was used otherwise for the purpose for which it was issued or the appellant has failed to comply with any of the conditions required by him to be fulfilled, therefore, in our views contravention of the Section 8(3) and 8(4) are not made out. - Appeals allowed - Decided in favor of appellants.
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2015 (12) TMI 1695
Guilty of contraventions of Section 8(3) and 8(4) of FERA, 1973 r/w Section 49(3) and 49(4) of FEMA, 1999 - Penalty imposed - whether there has been no lapse/FERA violations on the part of the company and the transactions were wrongly reported in BFE due to oversight of the bankers of the company? - Enforcement Directorate creation - Held that:- We see no reason to remand the matter back to Adjudicating Authority at this stage when parties have been litigating for a period of more than 11 years. The genuineness of the papers filed by the appellants as proof of due compliance of the requirement of filing of the exchange control copies of the bills of entry with the authorized dealer within time has not been disputed by the respondents. The appeals are continuation of the trial proceedings. We are convinced on the basis of evidence filed by the appellants in the instant appeals that they had timely submitted the exchange control copies of Bills of Entries to the respective authorized dealers (banks). We are also convinced with argument that it was negligence/mistake on the part of the authorized dealers in not reporting the due compliances to the RBI and instead furnished wrong information. The basic fault appears to us on the part of the banks but since they are neither parties in these appeals nor they have been afforded any opportunity to place their version before the Tribunal, therefore, we are not making any observations against them.
We would like to emphasize that Enforcement Directorate has not been created for the sole purpose of prosecuting the matters of alleged violations under FERA/FEMA but they are duty bound to assist the Tribunal and the Courts by placing the correct facts before them on the principle of fair play so that the parties get fair justice and the faith of the parties is not eroded from the judicial system. The Enforcement Directorate is an organ in the system of dispensation of justice and the way the matters in which no case was made out as per the communication of the RBI was persuaded, without discloser of the contents of the communication received by the Enforcement Directorate, the appellants had to suffer not only in terms of expenditure that might have been incurred in the litigation but also wastage of lot of valuable time of the appellants, Tribunal and Courts. The expenses incurred in litigation by the appellants may run perhaps in lakhs of rupees. However, we think it appropriate that for the failure to place the communication before the Tribunal and convey the contents in time the respondents be imposed a token costs in all the appeals for their conduct.
In view of the above discussions the appeals deserve to be allowed with costs.
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2015 (12) TMI 1527
Detention orders under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - non opportunity to assail the order of his detention - Held that:- In the facts and circumstances of the present case, it is apparent, that the order of detention under Section 3 of the COFEPOSA Act was passed on 11.6.1976. Immediately after the passing of the aforesaid order, on the same day, the Government of Gujarat issues a declaration under Section 12A, with reference to the detention of the appellant. Again, on the lifting of the emergency on 21.3.1977, the declaration under Section 12A ceased to be operative, with reference to the detention of the appellant. At the beginning of the order of detention, and at the time of revocation thereof, whilst the detention order subsisted only within the limited scope of Section 3 of the COFEPOSA Act read with Section 12A thereof, there was really no occasion for the appellant to assail the same thereafter, on any of the grounds as may have been available to him.
We are satisfied, that in the facts and circumstances of this case, specially the position highlighted by the learned counsel for the appellant, as has been noticed hereinabove, the appellant had no occasion whatsoever to challenge to the order of his detention, on the grounds available to him, while the detention order subsisted under the limited scope of Section 3 of the COFEPOSA Act read with Section 12A thereof after 21.3.1977, as the order under Section 3 could not have been the subject matter of challenge as the detenu was released on the same day.
In the present controversy, the appellant had no opportunity whatsoever to assail the order of his detention, after his release. As soon as the declaration under Section 12A of the COFEPOSA Act was revoked, the appellant was ordered to be released. His release undoubtedly was a release from detention under Section 3 of the COFEPOSA Act.
In the above view of the matter, we are of the view, that the determination rendered by the High Court in not allowing the appellant to raise a challenge to the order of his detention dated 11.6.1976, was wholly unjustified. The order passed by the High Court is therefore liable to be set aside. The same is accordingly hereby set aside. The appellant is relegated back to the High Court, so as to enable him to press his claim, on the grounds as may be available to him (to assail the order of his detention dated 11.6.1976). It is only after the determination of the High Court, that it will be open to the authorities to proceed with the action taken against the appellant under Section 6 of the SAFEMA Act, and that too, if the appellant fails in his attempt, to successfully assail the order of his detention.
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2015 (12) TMI 1294
Violation of Section 23 (1) read with Section 4 (1) FCRA, 1976 - Petitioner received funds without obtaining prior permission of the Central Government - Held that:- Foreign entities through whom such funds were sent were holding the same on behalf of his father. To this effect, Mr. Vipin Khanna made a statement dated 11.07.2006, whereby stated that these funds were sent on his instructions to the petitioner. Moreover, vide statement dated 13.04.2007, New Heaven Nominees’ stated that the funds sent to the petitioner by way of gifts were from funds standing to the credit of petitioner’s father with them. Moreover, similar gifts or funds were also given to the petitioner’s siblings, namely, Mr. Aditya Khanna, Mr. Naveen Khanna and Ms. Vineeta Singh by Mr. Vipin Khanna, i.e., their father. The statement dated 10.08.2007 made by CI Law Trust, corroborated that funds sent to the petitioner were paid by way of gifts from funds standing to the credit of Mr. Vipin Khanna and further stated that similar gifts or funds were given to other siblings mentioned above by father of the petitioner.
Investigating and prosecuting the petitioner for an offence for lack of prior permission from the Central Government as per Section 8 (e) FCRA, 1976, has now a complete exemption under Section 4 (e) FCRA, 2010 Act and continuation of the same would amount to an action taken under the FCRA, 1976 which is now rendered “inconsistent with the provisions of this Act” contained in Section 54 FCRA, 2010. Thus, it amount to removing such action from the ambit of protective saving provided by Section 54 FCRA, 2010. The prosecution has relied upon Section 6 (d) and (e) of General Clauses Act, 1897 and contended that the repeal shall not affect offences, investigations, legal proceedings which were commenced under the FCRA, 1976.
prosecution had no right of revision against order dated 05.07.2011 passed by learned Trial Court being an interlocutory order and hence order dated 20.08.2011 passed by learned Additional Sessions Judge which is impugned in Criminal M.C. No.3342/2011 is without jurisdiction and a nullity. Moreover, in terms of Sections 397, 399 and 401(2) Cr. P.C., no order can be passed in exercise of revisionary jurisdiction without notice to the accused person, as was done by the learned Sessions Court in this case, thus, on this ground also the order is bad in law. - In view of the material placed on record by the prosecution, ingredients of offence under Section 4 FCRA, 1976, are not made out as ‘foreign source’, as defined under Section 2 (1) (e) FCRA, 1976, or the offence under Section 4 of the 1976 Act has attended by the prosecution. The prosecution has alleged violation of Section 4 read with Section 23 FCRA, 1976, by the petitioner. In order to do so, the prosecution has failed to contend that the petitioner has received all foreign contribution within the meaning of Section 2 (1) (c) FCRA, 1976, from a foreign source. However, such ‘foreign source’ has been defined separately and categorically under Section 2 (1) (e) FCRA, 1976.
As far as companies are concerned, only those which are the companies within the meaning of Section 591 of the Companies Act, 1956 where more than 50% of nominal value is held by the government or citizen of a foreign country or a corporation or trust, the society registered in a foreign country would come under Section 2 (1) (e) FCRA, 1976. As far as trusts are concerned, it is those foreign trusts and funds which are financed by a foreign country. The prosecution has not even adverted to foreign entities from whom the petitioner received the funds are companies or trusts/firms. The charge sheet has simply lumped on these entities by labelling them as overseas firms/companies/trusts whether these are collectively treated under Section 2 (1) (e) FCRA, 1976. The only barebones reference made in para 16.14 of the charge sheet is that bank account of such entities are in United Kingdom and hence, they are foreign sources. However, in my considered opinion, this is not the definition of a foreign source under the Act.
Contribution made by a citizen of India living in another country (Non-Resident Indian), from his personal savings, through the normal banking channels, is not treated as foreign contribution. However, while accepting any donation from such NRI, it is advisable to obtain his passport details to ascertain that he/she is an Indian Passport holder. Admittedly, father of the petitioner is an Indian Passport holder and transaction is through banking channel. - material placed on record with chargesheet by prosecution is not sufficient even to frame charge against the petitioner. Therefore, I hereby quash the FIR mentioned above with all proceedings emanating thereto with liberty to the Central Government to compound the case of the petitioner under Section 41(1) FCRA, 2010. - Decided in favour of appellant.
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2015 (12) TMI 1245
Power of court to review and supervise the investigations against the political party - investigations under Foreign Contribution (Regulation) Act, 2010 (FCRA) - Held that:- Undoubtedly the Courts, in exercise of their power of judicial review, are entitled to direct investigation into an offence alleged to have taken place, as reiterated by the Constitution Bench in State of West Bengal Vs. Committee for Protection of Democratic Rights West Bengal (2010) 3 SCC 571 and such direction would not amount to infringement of the doctrine of separation of powers but such power should not be exercised just for asking or to satisfy the ego or vindicate the prestige of a party interested in such investigation and only if find such a direction necessary in the facts and circumstances of the case/situation. - Courts would be justified in issuing such a direction only if were to find prima facie an offence to have been committed and the Investigating Agency, for whatsoever reason, unwilling to act lest investigate or if find the investigation though undertaken, to be not a fair one or when find the gravity of the offence prima facie found by the Court to be such which requires investigation by a specialized agency, to restore public faith in the process of law.
Either of the said requirements to have been met. Not only has the State/State Agency not refused investigation or a willingness to look into the allegations made in the petition against the respondents but from a perusal of the records produced before us we find the State to have, in the context of each and every averment made in the present case, launched an inquiry/investigation in accordance with law. The petitioner has also not been able to make out a case of the likelihood of the investigation against the respondents being not fair and proper, owing to political factors or owing to the investigative agencies being under the administrative control of the respondents. In fact, this Court had closed the earlier writ petition filed by the petitioner finding no prima facie merit in the allegations of the petitioner to call for an order by the Court in exercise of its power of judicial review, to the investigative agencies to investigate. - No reason as to why the investigative agencies to whom the petitioner has already complained would not look into or are not looking into the allegations or would not discover the truth. - Appeal disposed of.
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2015 (12) TMI 1192
Validity of detention order - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) - Held that:- Since the Detaining Authority was represented by the officers at the time of hearing of the petitioner's case before the Advisory Board, the petitioner too was entitled to be represented through legal practitioner. Since no such opportunity was afforded to the petitioner though claimed by him, he was denied an opportunity of a fair hearing before the Advisory Board, which eventually resulted in passing an adverse order. - as would be clear from Para 3 of the counter affidavit, that the officers had appeared in the case before the Advisory Board and participated in the proceedings against the petitioner whereas the petitioner was denied such facility. This infirmity, being fatal, renders the impugned order legally unsustainable.
If the petitioner is a habitual offender and has past criminal record, as alleged by the respondents, it was all the more necessary for the respondents to have followed in letter and spirit the procedure laid down in A.K. Roy’s case before passing the impugned order of detention. It was, however, not done. - impugned order of detention is quashed - Decided in favour of appellant.
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2015 (11) TMI 131
Bail application - Arrest made without the mentioning of name in FIR - arrest of the applicant without a warrant in a non-cognizable offence - applicant is alleged to have received ₹ 7 crores from one Natural Trading Company and ₹ 6.31 crores from one M/s Gangeshwar Mercantile Pvt. Ltd. without satisfactory explanation - revention of Money Laundering Act, 2002 - Held that:- Applicant, at this stage, has failed to satisfactorily establish that the moneys received by him are untainted, inasmuch as, the circumstances brought on record by the Directorate of Enforcement reveal that there are doubts that the origin of the moneys received by the applicant, which appear to be connected with the scheduled offence. Under the circumstances, having regard to the involvement of the applicant in the offences in question as indicated hereinabove, it would not be possible for this court at this stage, to state that there are reasonable grounds for believing that the applicant is not guilty of the offences alleged against him. It may be reiterated that while considering the question of grant of bail in the present case, since the applicant is an accused in the scheduled offence, the rigours of section 45 of the PML Act would apply and the court is required to record twin satisfaction, one that, there are reasonable grounds for believing that the applicant is not guilty of such offence and second that, he is not likely to commit any offence while on bail.
One of the conditions precedent, namely, that the applicant is not guilty of such offence, is not satisfied, the applicant is not entitled to be released on bail under section 45 of the PML Act. - any observation made in this order is a prima facie observation made only for the purpose of deciding the bail application and the same shall have no bearing on the merits of the case at the time of trial which has to be adjudicated on the basis of the evidence that may be led by the respective parties. - Decided against appellant.
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2015 (11) TMI 77
Confiscation of amount seized from appellant premises - amount was obtained by any unfair means - offence under Section 9(1)(b) of the Act - Held that:- It is apparent that the alleged confessional statement dated 30.04.1991, said to have been recorded from the appellant by the Officers of the Directorate of Enforcement has not been corroborated by any independent witness. Further, neither Mohamed Hilal of Kuwait, nor Jahubar Nissar, from whose residence the alleged document was said to have been seized was examined in this case. Their statements were also not recorded. - neither the copy of the seized document (document serial No.35, sheet No.11 of bunch A) was furnished to the appellant nor its contents were disclosed to him. In the absence of independent and cogent evidence, it cannot be heard to say that the alleged confessional statement dated 30.04.1991, said to have been recorded from the appellant was proved by the Directorate of Enforcement. - alleged statement was subsequently retracted by the appellant in his reply. - retracted confession cannot be trusted and form basis to maintain the charge that the appellant had contravened the provisions of Section 9 (1) (b) of the Foreign Exchange Management Act 1999. Since the Directorate of Enforcement has miserably failed to substantiate their case, presumptions has to be drawn as contemplated under Section 114 of the Evidence Act in favour of the appellant. Impugned order set aside - Decided in favour of Appellant.
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2015 (11) TMI 28
Tribunal while directing the petitioner(s) to deposit 15% of the amount of penalty imposed and to furnish reliable security for the balance amount of 85% as a pre-deposit for hearing of the appeal has noticed that the petitioner (s) has an arguable case and it would cause hardship in case the waiver is not allowed, but no case of complete waiver was made out. - petitioner(s) has been required to pre-deposit 15% of the penalty amount as a condition precedent for hearing of the appeal, which is reasonable and justified. In the judgment in A. Tajudeen's case (2014 (10) TMI 367 - SUPREME COURT) relied upon by the learned counsel for the petitioner, the principle of law enunciated therein, is well recognized, however, being based on individual fact situation involved therein would be of no help to his case. - no merit in the instant writ petitions - Decided against assessee.
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2015 (10) TMI 2684
Contravention of Sections 7 and 8 of FEMA, 1999 read with Regulations 3, 8, 9 and 13 of Foreign Exchange Management (Export of Goods and Services) Regulations, 2000 involving export value of US $ 8,67,275.20 - unrealised GRI forms the authorized dealer had not contacted the Enforcement Directorate - Held that:- Since a period of almost 15 years has passed since the transactions took place and the RBI permitted authorized dealer to allow write off in respect of the two disputed GRI forms also subject to obtaining no objection however the authorized dealer did not approach the Enforcement Directorate. In our estimation there must have been some degree of satisfaction that is why approval to the authorized dealer to grant write off subject to certain conditions was allowed, the situation remains that the write off in respect of the two transactions through two disputed GRI forms has not been finally allowed.
The contravention of Section 8 of FEMA, 1999 against the appellant company and the appellant G. Rama Raju, Managing Director r/w Section 42(1) of FEMA is made out. Since the amount of penalty imposed against the company as well as against the appellant G. Rama Raju, Managing Director has been imposed without assigning any reason for determination of the amount, therefore considering the long gap of the alleged contravention in our opinion the ends of justice will be met if the penalty of ₹ 40 lakhs imposed against the company M/s. Siris Ltd. is reduced to ₹ 30 lakhs while the penalty of ₹ 5 lakhs imposed against G. Rama Raju is reduced to ₹ 3 lakhs and the order of the Adjudicating Officer regarding imposition of penalty against appellant G. Subha Raju, Executive Director appellant is set aside.
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2015 (10) TMI 264
Otherwise acquired foreign currencies - Proceedings under FERA, 1973 - holding the currency as owner thereof and handing a part of for safe custody with the appellant's mother and wife - ownership of foreign currencies - validity of statement before income tax authorities - Held that:- FERA and the Income Tax Act are two separate and independent Acts operating in two different fields. Therefore, we do not think that the appellants can take advantage of the decision rendered in the tax case appeal.
The decision rendered by the Authorities under the Income Tax Act has to be viewed in the context of the most fundamental principle that no income can be taxed twice. If one person makes a claim for certain amount of money and pays income tax, the Department cannot tax the same money at the hands of another, unless that other person has received it in the form of income through a secondary transaction. Therefore, the non inclusion of the value of these currencies in the income of the appellant in the first miscellaneous appeal, may have been driven by circumstances that provide for avoidance of double taxation. Hence, the first question of law is to be answered against the appellants.
The Appellate Tribunal itself has gone into the question relating to the expression 'acquire' in Section 8(1) and came to the conclusion that the non examination of Mrs.Seethalakshmi Nagaraj on the side of the defence was fatal. It was not relied upon by the prosecution. There was no explanation as to why and how the appellant in the second miscellaneous appeal came to the premises that was being raided, with a briefcase carrying foreign currencies. In such circumstances, we do not think that the orders of the Adjudicating Authority and the Appellate Tribunal call for any interference. - Decided against the appellants.
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2015 (9) TMI 1494
Detention order challenged - Held that:- The language of Section 5A of COFEPOSA makes it abundantly clear that if the order of detention is made on two or more grounds, the said order of detention shall be deemed to have been separately on each ground and accordingly the detention order shall not be deemed to be invalid merely because one or some of the grounds is or are invalid. In the present case, the bail applications relating to co-accused Manjunath, although was not supplied to the detenue along with the relied upon documents, RUD 32 i.e. bail application No.551/2015 within the prescribed time, but it was supplied on 02.06.2015 and this would not vitiate the detention order as it had been filed before the filing of the representation by the detenue. More the reason, the bail application of co-accused Manjunath is not the ground for detention of the detenue
In the present case, the detention order has been passed on 27.04.2015 on the grounds mentioned in para 37.1 and does not have any mention about the bail application of co-accused Manjunath. The bail application filed by co-accused Manjunath does not have any bearing on the grounds of detention, however the order passed in the bail application has already been supplied and even the copy of the bail application has been supplied immediately after serving the detention order along with the grounds of detention, without causing any delay in filing the representation.
We have reached the conclusion that the grounds of detention constitute a separate and independent ground under Article 22(5) of the Constitution of India read with Section 5A of COFEPOSA. The said grounds can be separated by applying the principle of segregation. The said grounds and the detention do not suffer from any infirmity.In view of the aforesaid reasons, we do not find any merit in the present writ petition
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2015 (9) TMI 1192
Petitioner challenges at pre-detention stage his detention - Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA) - smuggling of gold. - absence of "live link" due to time gap between the detention order dated 31st March, 2015 and the occurrence on 7th July, 2014 - Held that:- While deciding the issue whether the proposed deteun has absconded, the courts would have to examine the factual matrix. - in the facts of the present case we would not like to dismiss the present petition only on the ground of abscondence. We would like to dismiss the writ petition primarily for the reason that the petitioner has not been able to make an exceptional ground, to accept the present writ petition at the pre-detention stage.
It is certainly not an exceptional case, which would justify interference and exercise of writ jurisdiction without recourse to the normal and mandated statutory procedure. The aforesaid facts including the question of "live link" etc. could be appropriate and properly examined and decided first under the normal statutory provisions. Case for interference at the pre-detention stage under the exceptions is not made out. - Decided against the petitioner.
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2015 (9) TMI 338
Application filed beyond period of limitation – Condonation of Delay – Appeal was preferred against final order of Tribunal which was allowed and order of adjudication was quashed – Aggrieved by said order of tribunal, appeal was filed before High court which is objected on ground that it has been preferred beyond period of limitation – Held that:- Apparently, appeal has been filed after inordinate delay of 832 days.
Section 35 of FEMA permits appeal to be filed within 60 days from date of communication of order of Appellate Tribunal on any question of law – Proviso authorises High Courts to extend appeal to be filed within next 60 days, if it is satisfied that appellant was prevented by sufficient cause – Undoubtedly, Section 54 FERA permits appeal to be filed to High Court within 60 days – High Court shall not entertain any appeal under Section 54 if filed after expiry of 60 days unless High Court is satisfied that appellant was prevented by sufficient cause.
Reasons given by appellant for delay in filing appeal do not constitute sufficient cause –Rather reveals that there was inaction and negligence on part of various officers – No attempt was made for long seven months to rectify it and refile appeal – Application for condonation of delay cannot be decided as matter of routine as vested right accrues in favour of opposite party and benefit of such right cannot be disturbed lightly – No merit found in application of appellant seeking condonation of delay – Accordingly, other applications are also dismissed – Decided against Applicant
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2015 (8) TMI 1381
Contravention of Sections 18(2) and 18(3) of FERA, 1973 r/w notifications of Central Government dated 1-1-1974 - Held that:- Adjudicating Authority was at liberty to appreciate the evidence on record in accordance with law according to its wisdom independently. However, as a principle of law it cannot be said that judgments in all criminal appeals will ipso facto result in quashing the adjudication proceedings under FERA alike disciplinary proceedings in matter in which the accused (employee) is honourably acquitted. There cannot be any jacket cast formula in this respect. However, we are of the view that findings of the Hon’ble High Court even in a criminal matter on the same set of facts as involved in adjudication proceedings cannot be ignored or overlooked and brushed aside causally and will carry weight and in the eventuality of the Hon’ble High Court recording either clean acquittal in appeal or quashing of the complaint/proceedings on the ground of insufficiency of evidence or failure to establish the contraventions, the findings of the Hon’ble High Court shall prevail over the findings of Adjudicating Authority unless a distinction on some factual and legal grounds can be made to show that the findings of the Hon’ble High Court are not applicable and have no effect at all, in other words our interpretation is that the order of the Hon’ble High Court will have definite persuasive and binding effect in the matter of interpreting the findings of adjudicating proceedings based exactly on the same set of facts subject to being clearly not being distinguished on facts or law.
In view of the above, we are of the view that no contravention of Sections 18(2) and 18(3) of FERA, 1973 r/w notifications of Central Government dated 1-1-1974 is made out against the appellants and since the appellants appear to have taken all reasonable steps to receive or recover the payments for goods and they cannot be presumed to have contravened the said provisions r/w Central Government notifications.
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2015 (8) TMI 1112
Money laundering - res judicata in the criminal complaint - Attachment of property - appellant admitted that property is not owned by her but by the company - Held that:- The action of attachment is not in relation to a person as such but essentially to freeze the proceeds of the crime. The fact that the respondents could have acted only if there was reason to believe that a person is in possession of proceeds of crime does not mean that the authorities at this stage are obliged to prove the fact beyond reasonable doubt that the property in possession in fact was proceeds of crime. All that the authority is required to show is that there was “substantially probable cause” to form an opinion that the property under attachment is proceeds of crime.
Perusal of Chapter III of PMLA also reveals that the orders passed under it are interlocutory in nature and such order do not decide finally whether an offence has been committed by an accused under Section 3 of the Act for Money Laundering nor such orders passed under said chapter decide what punishment is to be imposed on such accused for money laundering. Any observation made while passing orders under said chapter are not the findings for the purpose of alleged offense committed under Section 3 nor observations are the findings in the Criminal matters pending against such accused.
It is also well settled that the principle of res judicata does not apply to interlocutory orders like order of stay, injunction or appointment of receiver which are designed to preserve the status quo pending litigation to ensure that the parties may not be prejudiced but the normal delay which the proceedings before the Court usually take.
On the basis of the observation made in the impugned order, the appellant cannot be convicted and sentenced in the criminal cases. - Appeal disposed of.
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