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FEMA - Case Laws
Showing 401 to 420 of 1378 Records
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2015 (8) TMI 1105
Contravention of Section 18 (2) of the Foreign Exchange Regulation Act, 1973 - non-realization of export proceeds - Held that:- Although Section 68 FERA is in the nature of a deeming provision, the proviso thereto contemplates rebuttal of such presumption by a person who is able to show that the contravention took place without his or her knowledge. - memorandum is a cyclostyled form and the averments as regards all the directors is identical. There is no specific mention of the precise role of the Appellant in managing the day-to-day affairs of the company. The case of the Appellant is different from that of Mr. Dinkar Dogra. Prior to Mr. L.R. Sridhar taking over the management of the company, Mr. Dinkar Dogra was the managing director. The order dated 4th June 2008 passed by this Court dismissing Mr. Dinkar Dogra's Criminal Appeal [2008 (6) TMI 579 - DELHI HIGH COURT] discusses in detail the evidence showing Mr. Dogra to be incharge of the day-to-day affairs of the company. There is no evidence to show in what manner the present Appellant, Mrs. Kavita Dogra was responsible to the company for the conduct of its business. As already noticed, neither the adjudication order nor the impugned order of the AT discusses the facts peculiar to the Appellant. - Court is, therefore, satisfied that the DoE failed to make out a case of contravention of Section 18 (2) FERA as far as the Appellant was concerned. Neither the adjudication order nor the order of the AT in her case are sustainable in law. - Decided in favour of appellant.
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2015 (8) TMI 236
Waiver of pre deposit - contravention of Section 3(b) and 6(2) of FEMA read with Regulation 5 of Foreign Exchange Management (Permissible Capital Account Transactions) Regulations, 2000 read with para 8 of Schedule I to Regulation 5(1) of Foreign Exchange Management (Transfer of Issue of Security by a person resident outside India) Regulations, 2000 - Imposition of penalty - Amount remitted for franchisee in IPL, reached BCCI through concerns abroad rather than the Indian subsidiary without making compliance with the Regulations under the Foreign Exchange Management Act, 1999.
Held that:- Once the Appellants claim that there is no revenue or financial loss and that the remittance to India has come through proper channels, namely through the banks, then, whether obtaining of permissions and approvals subsequently and whether incorporation of an Indian subsidiary later on would enable the Appellants to claim any benefit or seek any relief are other core questions involved in the Appeals. The Appellants would have to satisfy the Tribunal that monies may have been remitted by certain companies or concerns abroad to BCCI, but reached it not through an Indian subsidiary is something which should not invite penal consequences. Once the monies have reached the beneficiary through appropriate banking channels, then, there is no violation or breach of law is the case put up by the Appellants in these Appeals.
Chairman was required to apply his mind to the differences that were noted by him. It was open for him to find out as to whether the Appellants having made out a prima facie case, could any relief be granted and in terms of the legal provisions. If the legal provisions enable the Tribunal to consider the case of “undue hardship”, whether that term is to be given a restricted meaning, namely, financial hardship alone or whether that should take in its import a prima facie case being made out and the point being arguable, a party would suffer unless the condition of pre-deposit is waived totally or partially.
Prima facie case in favour of appellant.
Appellants would have to satisfy the Tribunal that monies may have been remitted by certain companies or concerns abroad to BCCI, but reached it not through an Indian subsidiary is something which should not invite penal consequences.
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2015 (8) TMI 187
Violation of provisions of Sections 47(1) & (2), 9(1)(c) and 8(1) - Permission from RBI for advertisement of ‘Kingfisher’ brand name on racing cars during Formula-I World Championships - Failure to appear against the summon issued - Held that:- Complaint is maintainable if there is default in not carrying out summons lawfully issued. The averments in the complaint show that the summons dated 21st December, 1999 were refused by the appellant and earlier summons were not carried out deliberately. - From the tenor of the letter, it appears that it was not a case of mere seeking accommodation by the appellant but requiring date to be fixed by his convenience. Such stand by a person facing allegation of serious nature could hardly be appreciated. Obviously, the enormous money power makes him believe that the State should adjust its affairs to suit his commercial convenience.
The fact that the adjudicating officer chose to drop the proceedings against the appellant herein does not absolve the appellant of the criminal liability incurred by him by virtue of the operation of Section 40 read with Section 56 of the Act. The offence under Section 56 read with Section 40 of the Act is an independent offence. If the factual allegations contained in the charge are to be proved eventually at the trial of the criminal case, the appellant is still liable for the punishment notwithstanding the fact that the presence of the appellant was required by the adjudicating officer in connection with an enquiry into certain alleged violations of the various provisions of the Act, but at a subsequent stage the adjudicating officer opined that there was either insufficient or no material to proceed against the appellant for the alleged violations of the Act, is immaterial.
An appeal against the conclusion of the adjudicating officer that the proceedings against the appellant herein for the alleged violation of the various provisions of the FERA Act are required to be dropped has not even attained finality. Admittedly, such an order of the adjudicating officer confirmed by the statutory appellate authority is pending consideration in an appeal before the High Court. Though, in our opinion, the result of such an appeal is immaterial for determining the culpability of the appellant for the alleged violation of Section 40 read with Section 56 - entire approach adopted by the appellant is a sheer abuse of the process of law - Decided against Appellant.
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2015 (7) TMI 1080
Locus standi of the Director of Enforcement to maintain the present appeal before this CourT - Unauthorised acquisition of foreign exchange - Tribunal after examining the records, found that the charge against the respondent herein was not proved by the prosecution and agreed with the findings of the Adjudicating Authority and accordingly dismissed the Revision - Held that:- In the case in hand, admittedly no notification for appointing the Director of Enforcement as the competent authority for enforcing the provisions of the Act and delegating specific functions under the Act to him, was produced before us. Though the learned standing counsel for the appellant undertook to produce one such notification, he failed to do so. That shows, no notification was issued by the Central Government. Thus, in the absence of any notification passed by the Central Government for specifically empowering the Director of Enforcement to enforce the provisions of the Act and delegating him with specific functions under the Act, the appellant herein i.e., Director of Enforcement cannot be treated as aggrieved party and has no locus standi to file this appeal and the Civil Miscellaneous Appeal is hence liable to be dismissed on the ground of maintainability and the substantial question of law is accordingly answered against the appellant.
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2015 (7) TMI 701
Imposition of penalty - Failure to furnish evidentiary proof of imports regarding foreign exchange in respect of nine remittances in contravention of Sections 8 (3) and 8 (4) of Foreign Exchange Regulation Act, 1973 - Held that:- Documents were in respect of imports that took place pursuant to the remittances made in the years 1994 to 1999. The Customs authorities had in 1995 seized some of the files in respect of imports that had taken place in 1994. The SCN was issued only in May 2002. The firm could not have been expected to retain the proof of all remittances for over six years. The explanation given by it for not being able to immediately furnish the exchange control copies of the BoEs was bonafide. In any event, by the time the Appellants were heard by the AT, the certified copies of the documents to prove import of goods against the remittances at Sl. Nos. 9 to 11 and 12 to 14 were furnished. For some reason, the AT does not appear to have noticed this fact. It has not referred to the documents in its impugned order. The ED has not produced any material to doubt the authenticity of the said documents. It was for the ED, if it doubted the genuineness of the said documents, to have further verified them with the authorities concerned. - very basis for issuance of the SCN to the Appellants does not survive. There is no cause of action for the Appellants to be penalised for contravening Sections 8 (3) and 8 (4) of FERA. - Decided in favour of assessee.
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2015 (5) TMI 1120
Issuance of a writ in the nature of Habeas Corpus in the matter of detention of the petitioner, who is detained passed by the Joint Secretary, Government of India (COFEPOSA), New Delhi - Held that:- Having regard to the categorical assertions made by the learned Additional Solicitor General we are of the view that since a copy of the representation was only marked to the Advisory Board and no copy was supplied to either the Central Government or the detaining authority, it is not open for the petitioner to say that the representation was not decided by them, irrespective of the fact that the representation was addressed to the Advisory Board. Undoubtedly, in case the representation had been served upon the Central Government or the detaining authority, it would have been mandatory for them to have decided the same.
The additional ground raised by counsel for the petitioner i.e., in the absence of documents as admitted by the respondents in the time-chart, the detention order is bad in law and is liable to be quashed, is also without any force, as the time-chart leaves no room for doubt that prior to the passing of the detention order all documents sought to be relied upon were received.
Having carefully examined the time-chart, relevant portion of which has been reproduced above, would show that it is only after all the documents were received and examined the detention order was passed. Hence, the submission of counsel for the petitioner that the detention order is bad in law and is liable to be quashed, as the same is passed in the absence of the relevant documents, is also without any force. No other ground has been urged before this court. In view of the reasons aforestated, we do not find any reason to entertain the present petition and the same is accordingly dismissed, leaving the parties to bear their own costs.
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2015 (5) TMI 1033
Nature of offences - whether Offences, punishment of which extend to seven years, under the Foreign Exchange Regulation Act, 1973 FERA) being noncognizable in terms of Section 62 of the Act, are bailable or nonbailable? - Held that:- Under FERA the power in terms of Section 45 of the FERA though has been given to police officer and other officer to make search and arrest when warrant but no provision is there that if arrest is affected by the officer other than the police officer, he is required to forward the accused to the officerincharge either for him to admit him on bail or to produce before the Magistrate, rather the provision as contained in Section 35 relating to the arrest, does stipulate that enforcement officer if has reason to believe that one has committed offence punishable under the Act, he may arrest such person and may inform him of the ground for such arrest and the said officer in terms of Subsection (3) of Section 35 will have same power as that of the officerincharge of the police station. That apart, no such provision is there which does speak about the compounding of the offence as is there under the Central Excise Act and Custom Act.
Under the circumstances, the offences under the Foreign Exchange Regulation Act, 1973 punishment of which extend to a period of seven years, cannot be taken to be bailable, rather in terms of the provision as referred to above and also in view of the Second part of Schedule I to Cr.P.C are held as nonbailable.
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2015 (5) TMI 939
Maintainability of appeal - whether the appeals were dealt with by the Appellate Tribunal (which is the new avatar of the Appellate Board) under FERA or FEMA - Held that:- Language of Section 49(5)(b) of FEMA is suggestive of the fact that it is only an appeal, which was pending before the Appellate Board, and which could not be disposed of before the commencement of the Act (i.e., FEMA), would stand transferred to the Appellate Tribunal. Therefore, to suggest that the subject appeals, were disposed of by the Appellate Tribunal, based on the said provision, in my view, does not appear to be, on a plain reading of the provision, the correct position of law. - since the subject appeals were not pending on the date of commencement of FEMA, the Appellate Tribunal, which got constituted after the dissolution of the Appellate Board, had exercised powers under FERA and not had taken recourse to the provisions of the FEMA.
In so far as Section 35 of the FEMA is concerned, it gives a right to an aggrieved party to prefer an appeal against “any” “order” or “decision” of the Appellate Tribunal. Therefore, an appeal, even against an interim order of the Appellate Tribunal, will be available to the petitioners. The appeal, however, will have to be preferred, by the aggrieved party (in this case the petitioners herein) before the concerned High Court. The explanation to Section 35 of the FEMA, sets out, as to which High Court would be the appropriate court in a given case. It is not the petitioners’ case that they are ordinarily residents of Delhi or, they carry on business or personally work for gain within the jurisdiction of this court. That being so, this court is not the appropriate court where an appeal under Section 35 of FEMA can be preferred by the petitioners - Appeal not maintainable - Appeal disposed of .
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2015 (5) TMI 907
Violation of the provisions of Section 9 (1)(b) and 9(1)(d) of FERA - Receipt and distribution of money - Receipt of commission - Validity of assessment proceedings - inordinate delay in conclusion of the proceedings - Held that:- Frivolous proceedings or proceedings taken out to merely delay the day of reckoning cannot be treated as proceedings taken in good faith, and that, mere fact on an application or petition, a stay is granted by a superior court is no ground to construe that the proceedings are not frivolous as very often such orders are obtained on exparte representation. In effect, it was observed by the court that while it may not be advisable or practicable to fix time limit for trial of offences, the courts while ascertaining whether undue delay has occurred must have regard to all attendant circumstances including the nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions, i.e., that which is termed as “systemic delays”. In sum, the guideline formulated is to balance and weigh all relevant factors.
Respondents from very inception have procrastinated in prosecuting the case unmindful of the detriment that it would cause to the petitioner. - petitioner, was entitled in law to seek copies of the relied upon documents. The fact that respondents admittedly kept them back till March 2004 clearly shows that either they lacked, for whatever reasons, the interest to prosecute the petitioner or, they had no actionable case against the petitioner.
Despite, repeated requests made on behalf of the petitioner to summon panch witnesses, the said request was declined by the respondents. This request attains significance as SCN proceeds on the basis as if the petitioner was the owner of the Minto Road premises. The premises, (since then demolished) was, concededly, a Government accommodation. The reason why the petitioner happened to visit the Minto Road premises would have, perhaps, come to light if, an opportunity was given to the petitioner to cross-examine the panch witnesses, who accompanied the official witnesses at the time of search. - Similarly, the production of co-noticees who allegedly received moneys distributed by the petitioner was equally important from the point of view of the petitioner. These persons have not been produced for cross-examination at least since 2004; despite a categorical request made in this behalf in the communication dated 27.07.2004 addressed by the petitioner’s counsel to the respondents.
There were no answers forthcoming on behalf of the respondents on these aspects of the matter. There are no answers supplied in the counter affidavit as well. The reason for the same perhaps is, that these witnesses have either died or are not traceable. Either way, the dis-appearance of evidence which could be crucial to the petitioner’s case has occurred on account of the delay on the part of the respondents in concluding the adjudicatory process with due expedition. - adjudication cannot proceed any further on account of undue and unexplained delay in concluding the proceedings. Accordingly, the adjudication proceedings, which commenced vide memorandum dated 14.11.1995, are quashed. - Decided in favour of appellant.
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2015 (5) TMI 368
Recovery of large amount of cash - contravention of the provision of Section 9(1)(b) and 9(1)(d) of FERA Act, 1973 - Offence under Section 56(1)(i) of FERA Act and Sections 49(3) and (4) of FEMA Act, 1999 - Reliability on co-accused's statement - Held that:- confession of co-accused is admissible only if the case of other co-accused has been tried jointly as per Section 30 of Indian Evidence Act. In such circumstances, no reliance can be placed on Exs.P5 and P7/statements of Haja Mohideen - It is true, statement of respondent/accused was recorded under Section 40 of FERA Act. Once the respondent has admitted his guilty, he ought to have proved his innocence. There is presumption under Section 59 of the FERA Act and burden is shifted on the accused to prove that he is innocent as per Sections 71 and 72 of the FERA Act - Ex.D13 shows that the respondent was alleged to have been hit by some persons (i.e.) Enforcement Officers on 11.04.1990 and 10.04.1990 and that the respondent was complained of eye pain for six days and the accused was given treatment for the injuries. So Ex.D10 is affirmed and fortified by Exs.D12 and D13, which shows that Exs.P12 and P14/statements of the accused are obtained by coercion.
Except the statement of co-accused, no other independent witness was examined. Even though there are two attestors for the seizure mahazar, no one was examined and no reason has been assigned for non examination of those two independent witnesses, who were present at the time of searching A1/Haja Mohideen, Munavar Hussain and Syed Mohammed Buhari, who were sitting in the car. As per the judgment reported in [2009 (12) TMI 251 - DELHI HIGH COURT] (Directorate of Revenue Intelligence v. Moni),even though statement has been recorded under Section 40 of FERA Act, no recovery was effected from the respondents. This judgment is squarely applicable to the facts of the present case. - the respondent has proved his innocence by way of examining himself as D.W.1 and marking Exs.D1 to D14. The trial Court has also rightly held the respondent has proved that he is innocent by way of marking documents and hence, acquitted the respondent/accused for offences under Sections 9(1)(b) and 9(1)(d) of FERA Act, 1973 and Section 56(1)(i) of FERA Act, 1973 read with subsections 3 and 4 of FEMA Act, 1999. So the judgment of acquittal passed by the trial Court does not suffer any perversity and it is hereby confirmed. - Decided against Revenue.
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2015 (4) TMI 1327
Violation of the provisions of FEMA - penalty u/s 13 (1) of FEMA imposed - freezing the bank account as exercised by Assistant Director under Section 37 (3) of FEMA - HELD THAT:- The above provision empowers the Assistant Director to exercise powers under the Income Act 1961. Thus the communication dated 17/11/2014 freezing the petitioners' fixed deposit account in Bank of Baroda is submitted to be in terms of Section 132 (3) of the Income Tax Act 1961. However, in terms of Sections 132 (8) of the Income Tax Act 1961 the life of such a freezing order is only 60 days.
Admittedly, the period of 60 days have long expired after the communication dated 17/11/2014. Mr. Vaze, learned counsel for the Enforcement Directorate is not able to show any extension granted or any other communication thereafter freezing the account. Consequently, the communication dated 17/11/2014 is no longer valid in law and the same is quashed and set side. For the purpose of this petition we have not examined the larger issue viz. the scope of Section 37 of FEMA and its applicability even after the show cause notice has been issued by the Adjudicating Authority.
We do not interfere with the show cause notice dated 18/12/2014. However, the Adjudicating Authority shall dispose of the show cause noticed dated 18/12/2014 as expeditiously as possible after following the principles of Natural Justice.
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2015 (4) TMI 1217
Applications for additional evidences - denial of natural justice - offence under SAFEMA - Held that:- After careful perusal of all the submissions and documents we are satisfied that the Competent Authority decided the case without giving a reasonable opportunity to the appellants to produce all the evidence before him. We are also guided by the fact that upon verification and examination, the submissions about the legal acquisition of the forfeited properties have been found to be acceptable by the ld. Authorized representative for the respondent. We accordingly allow both the miscellaneous applications for additional evidences filed by the applicants/appellants and take on record the additional documents filed by the appellants.
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2015 (4) TMI 985
Detention of petitioner - Prevention of smuggling of goods - Held that:- Detaining authority, after passing the detention order dated 27th February, 1989 was indifferent in securing the detenu by not taking proper action with great caution. It further appears that the police authorities of the Respondent No.4 were also not prompt in their action in executing the said detention order and the execution of the said detention order was unduly delayed, which allowed the detenu to remain at large for a long period and has consequently defeated the very purpose of the impugned order. The Respondent Nos.1 and 2 have failed to satisfactorily explain the delay occurred in executing the order of detention after a lapse of abut 26 years. As has been held by the Supreme Court in the case of P.U. Iqbal (1991 (12) TMI 269 - SUPREME COURT), the delay throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently renders the detention order bad and invalid because of the 'live and proximate link' between the grounds of detention and the purpose of detention is snapped in arresting the detenu. The Petition, therefore, deserves to be allowed thereby setting at liberty the detenu forthwith - Decided in favour of appellant.
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2015 (4) TMI 639
Imposition of penalty - prohibition of any payment into a credit of a resident outside India except with general or special permission of the Reserve Bank of India - Held that:- Admittedly, the payment was made in India towards customs duty payable by the non-resident Indian while importing the car. The adjudicatory authority with reference to notification No.16/2000, dated 03/05/2000 held that only certain payments are allowed to be made in favour of a resident outside India during his stay in India and not one that was paid by the petitioner to the importer of the car, who is a Non-resident Indian. - The payment now effected is not one referable as permitted under notification No.16/2000, dated 03/05/2000. The notification No.FEMA/17/RB-2000, dated 03/05/2000 relied by the learned counsel for the petitioner has no application in this matter, as the same deals with the payment in Indian rupees to residents of Nepal and Bhutan. The adjudicatory authority passed the order after adverting to the relevant provisions. I do not find any infirmity with the order passed by the adjudicatory authority in regard to the decision making process - Decided against the appellant.
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2015 (4) TMI 232
Contravention of Section 9 (1) (b) and (d) of the Foreign Exchange Regulation Act, 1973 - Penalty u/s 50 - Criminal prosecution for Economic Offences - Economic Offences Court acquitted the appellant holding that the prosecution has not proved the guilt of the appellant beyond all reasonable doubt - Imposition of pre deposit condition for hearing appeal against imposition of penalty - Held that:- In view of the decision of the Supreme Court in Standard Chartered Bank's case (2006 (2) TMI 272 - SUPREME COURT OF INDIA), which has also been rendered under the provisions of the Foreign Exchange Regulations Act, the plea of the appellant that on his acquittal in the criminal case, no penalty is imposable on him, does not merit consideration, since the Supreme Court has categorically held that adjudication and prosecution are two independent proceedings and the finding in one is not conclusive in the other. In view of the above decision of the Supreme Court, this Court finds no reason to interfere with the order passed by the Appellate Tribunal. - Decided against appellant.
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2015 (3) TMI 1165
Application for amendment in the memo of appeal - Held that:- The amendment application appears to have been made bonafidely and through it the appellant wants to bring on record the subsequent developments. Through the proposed amendment, no new cause has been set up by the appellant and is in continuation of the facts which were placed earlier. The subsequent developments are being placed before the Tribunal, so that they may be duly considered at the time of the final disposal of the appeal. The application, therefore, deserves to be allowed.
The application for amendment in the memo of appeal is allowed. The amendment be incorporated within 10 days of the receipt of the copy of the order. Reply/written statement, if any may be filed by the respondent within 15 days thereafter. List on 26-5-2015 for hearing.
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2015 (3) TMI 687
Misuse of telephone line - one ISDN line was made a permanent channel at each of the above premises and thereafter by using sophisticated equipment international calls were being distributed to Delhi & nearby areas illegally through PSTN (Public Switch Telephone Network) - One ISDN line has a bandwidth of 144 Kbps and this bandwidth was misused to make about 24 voice calls in one single ISDN call, which caused loss equivalent to the charges for 22 lSD calls to the Govt. of India in terms of foreign exchange - Held that:- statutory requirement of issuance of notice under proviso of Section 61(2)(ii) of the FERA, its date and manner as well as the failure to consider the petitioner's reply has resulted in manifest error in the exercise of jurisdiction by ACMM . The order taking cognizance in the instant case and issuance of summons is contrary to law.
Thus impugned order of cognizance and summoning of petitioner by ACMM vide order-dated 27th May, 2002, is illegal and is against the settled law and is liable to be quashed as the petitioner was not given opportunity as envisaged in law under Section 61 of the FERA which is apparent from the fact that complaint was filed and initiated in a haste manner before the ACMM even before the expiry of the period of opportunity granted to petitioner and the Trial Court in utter ignorance of the right given to the petitioner under Section 61 (2) and the bar imposed upon. The Trial Court thereby upon taking cognizance, issued process against the petitioner, which is apparent from the fact that the trial court did not even record in the impugned order about the fulfillment of statutory and mandatory requirement of Section 61 (2) of the FERA.
With regard to Show Cause Notice for adjudication proceedings dated 4th April, 2002, which was served upon the petitioner on 22nd August 2002 i.e. after filing of the complaint, which was replied by petitioner vide reply dated in 19th September, 2002. - It is admitted fact that no proof of service of notice was filed by the respondent at the time of filing the complaint on 27th May, 2002 to establish that an opportunity in terms with Section 61 (2) was given to the petitioner and the petitioner failed to respond the same by showing that it has permission from the RBI or not making him liable for prosecution under Section 56 of the FERA.
Legal bar imposed in proviso to Section 61 of the FERA, is ought to have satisfied himself at the first instance before issuance of the process about compliance of proviso to Section 61 (2) about the factum of opportunity given to the accused and his satisfaction to this effect must be there before taking cognizance against the petitioner in exercise of his legal duty, as there is a statutory bar imposed upon the ACMM from taking cognizance. If the trial court would have exercised his legal duty diligently in terms of Section 61 (2) of the FERA the cognizance could not have been taken for want of granting an opportunity to the petitioner, as done by the trial court in a mechanical manner. - Impugned order is liable to be set aside - Decided in favour of appellant.
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2015 (2) TMI 1160
Penalty under Section 13(1) of Foreign Exchange Management Act, 1999 - direction to the fourth respondent seeked to release the balance amount directed to be released to the petitioner under Ext.P1 order - Held that:- As a statutory appeal under Section 17 of the Act is pending before the fifth respondent and the said amount cannot be released during the pendency of the said appeal thus find some force in the objection raised by the revenue.
The grievances of the petitioner can be redressed by directing the fifth respondent to dispose the statutory appeal at the earliest. The fifth respondent is directed to dispose Ext.P5 appeal at the earliest, at any rate, within a period of two months from today.
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2015 (2) TMI 1044
Contravention of Section 9 (1) (b) and (d) of the Foreign Exchange Regulation Act, 1973 - Whether in a case where an offence was punishable with a mandatory sentence of imprisonment, a company incorporated under the Companies Act, can be prosecuted, as the sentence of imprisonment cannot be imposed on the company? - Held that:- In view of the decision of the Supreme Court in Standard Chartered Bank's case (2006 (2) TMI 272 - SUPREME COURT OF INDIA), which has also been rendered under the provisions of the Foreign Exchange Regulations Act, the plea of the appellant that on his acquittal in the criminal case, no penalty is imposable on him, does not merit consideration, since the Supreme Court has categorically held that adjudication and prosecution are two independent proceedings and the finding in one is not conclusive in the other. In view of the above decision of the Supreme Court, this Court finds no reason to interfere with the order passed by the Appellate Tribunal. - Decided against appellant.
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2015 (2) TMI 460
Imposition of penalty jointly and severally - failure to take reasonable steps for repatriation of export proceeds of US $ 23580.02 in respect of goods exported under 3 GRIs - Held that:- While going through the order of penalty, I have noted that there is hardly any discussion on the role of the partners that led to non-realisation of the export proceeds of the 3 GRs and the ld. adjudicating officer has not arrived at any finding to show that the partners were responsible for non-realisation of the export proceeds. Section 68(1) of FERA, 1973 lays down the provision for monetary penalty on the partner only when it is found that he was in charge of, and was responsible to, the company for the conduct of business of the company. On this finding only, he shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. While sub-section (2) of Section 68 of FERA, 1973 lays down a provision that where it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.
Provisions of Section 68 of FERA, 1973 are more explicit in this regard. I, therefore, find that the impugned order imposing joint penalty on the partners before proving that non-realisation of the three GRs was attributable to each of them, is liable to be quashed and set aside.
It appears to me from the correspondence exchanged between the appellants and the authorized dealer Punjab National Bank that the appellants had been realizing full amounts of export proceeds against all other exports made under different GRs but payment against three GRs in question could not be realized due to taking delivery of the goods by the foreign buyer fraudulently. That there had been fraudulent delivery of the goods is proved by the certificate dated 20-1-2003 issued by the authorized dealer whereunder they have confirmed the same and also the fact of original complete set of documents in their possession. Therefore, I am led to believe that the appellants were making all reasonable efforts for realizing the export proceeds but realization in respect of three pending GRs could not be made due to circumstance beyond their control.
On plain reading of the sub section (2) and sub section (3) of Section 18 of FERA, 1973, it is crystal clear that the Act does not render non-realisation of export proceeds per se punishable thereunder. The essential ingredients of the sub-section (2) of Section 18 is doing or refraining from doing anything or taking or refraining from doing anything or taking or refraining from taking any action which has the effect of securing the result which is envisaged either in clause (a) or (b) of the said sub-section. It would be sufficient for an exporter to discharge the adverse presumption under Section 18(3) of the Act when he shows that reasonable steps within his limitations have already been taken. In the instant case the learned adjudicating officer has failed to correctly appreciate the nature and extent of the presumption to be drawn in terms of Section 18(3) of the Act. In these circumstances, the ld. adjudicating officer appears to have erred while holding the appellant company guilty of the alleged contravention for not taking reasonable steps. - appellants have taken all reasonable steps to rebut the presumption under Section 18(2) of FERA, 1973 and therefore, the view taken by the ld. adjudicating officer in the impugned order is not tenable on the facts and circumstances of the case. - Decided in favour of appellants.
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9911796707
