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FEMA - Case Laws
Showing 641 to 660 of 1378 Records
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2010 (3) TMI 657
Search under FEMA – Forcibly took appellant to office – Request for appear with the lawyer of his choice rejected - no jurisdiction of power to deny the presence of an advocate – There is no provision under FEMA, 1999 and Income Tax Act, 1961 to permit the petitioner to appear with a lawyer of his choice -Held that: - assistance of an Advocate not required at the stage of initial and preliminary investigation by the officials of the respondent – Appeal is dismissed.
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2010 (2) TMI 1323
Issues Involved:
1. Jurisdiction of the court u/s 227 of the Constitution of India read with Section 482 CrPC.
2. Validity of the complaint under the repealed Foreign Exchange Regulation Act, 1973 (FERA) and its transition to the Foreign Exchange Management Act, 1999 (FEMA).
3. Interpretation of Section 49(3) of FEMA regarding the cognizance of offences under the repealed FERA.
Summary:
1. Jurisdiction of the court u/s 227 of the Constitution of India read with Section 482 CrPC:
The Criminal Application invoked the court's jurisdiction under Article 227 of the Constitution of India read with Section 482 CrPC to challenge an order dated 27/3/2008 by the Sessions Court for Greater Bombay in Criminal Revision Application No. 921 of 2005. The Additional Sessions Judge upheld the Magistrate's order issuing process and dismissed the Revision Application of the applicant.
2. Validity of the complaint under the repealed Foreign Exchange Regulation Act, 1973 (FERA) and its transition to the Foreign Exchange Management Act, 1999 (FEMA):
The complaint was filed by the Enforcement Directorate alleging offences under Section 120B of IPC, Section 56(1)(ii) read with Section 19(1)(b) of FERA, 1973, and Sections 64(2), 68(1), and 68(2) of FERA, 1973, all read with Sections 49(3) and 49(4) of FEMA, 1999. The applicants contended that the complaint was barred by law as FERA was repealed by FEMA, which does not provide for criminal prosecution. They argued that the cognizance of offences under the repealed Act was barred after two years from the commencement of FEMA.
3. Interpretation of Section 49(3) of FEMA regarding the cognizance of offences under the repealed FERA:
The applicants argued that Section 49(3) should be interpreted to mean that no court shall take cognizance of an offence under the repealed Act after two years from the commencement of FEMA. They relied on the Rule of Last Antecedent and various judicial precedents to support their contention. However, the prosecution contended that both criminal proceedings and adjudication under the old Act are saved if initiated within the stipulated period. The court held that Section 49(3) must be read as a whole, and both offences and adjudication proceedings can continue if cognizance is taken within the statutory period. The court rejected the applicants' interpretation and upheld the orders issuing process and rejecting the discharge applications.
Conclusion:
The court dismissed the Criminal Application, discharged the rule, and vacated any ad-interim orders. The court emphasized that the legislative intent was to save both criminal and adjudication proceedings under the repealed FERA, provided they were initiated within the specified period under FEMA.
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2010 (2) TMI 582
Whether the order of the Special Director itself suffered from serious irregularities and illegalities?
Whether more than prima facie case has been made out by each of the Petitioners herein in their appeals before the Appellate Tribunal?
Held that:- It appears that the interests of justice would be served if the impugned order of the Appellate Tribunal is modified, and it is directed that the Petitioners’ appeal should be heard on merits now that each of them has deposited 15 per cent of the penalty amount as directed by this Court. The impugned order of the Appellate Tribunal will stand modified accordingly. The Appellate Tribunal will proceed with the final hearing of the Petitioners’ appeals and pass a final order thereon within a period of six months from today.
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2010 (1) TMI 1269
Issues involved:
The petitioners seek a Writ of Prohibition or a Writ in the nature of Prohibition and/or direction under Article 226 of the Constitution of India to prohibit the respondents from proceeding with adjudication u/s Foreign Exchange Regulation Act, 1947, Foreign Exchange Regulation Act, 1973, and Foreign Exchange Management Act, 1999 for alleged acts and omissions in the years 1958, 1966, and 1970.
Factual Background:
The petitioners faced adjudication proceedings under various foreign exchange regulations for alleged acts in the years 1958, 1966, and 1970. Show-cause notices were issued in 1973-74, but no action was taken for over 27 years until the proceedings were revived after the repeal of FERA in 2001.
Contentions:
The petitioners argued that the long delay of 28 years deprived them of the ability to defend themselves effectively. They claimed that the reopening of proceedings after such a long period violated their right to equality before the law and cited concerns about the right to a speedy trial as per legal precedents.
Consideration:
The court noted that the proceedings sought to adjudicate upon matters from 1958, 1966, and 1970 based on show-cause notices issued in 1973-74. Despite the long delay and lack of action by the respondents, the court considered whether the proceedings had become stale and arbitrary. Legal precedents were cited where delays in adjudication led to quashing of proceedings due to lack of justification for the delay.
Judgment:
The court found that the delay of over 27 years without any fault of the petitioners rendered the reopening of proceedings unjust and arbitrary. It was observed that the Department cannot be allowed to reopen old matters after such a long period, as it would cause serious prejudice to the petitioners. The court allowed the petition, emphasizing that the Department cannot commence adjudication proceedings decades after the original show-cause notice. The rule was made absolute in favor of the petitioners with no order as to costs.
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2010 (1) TMI 610
Seizure of sale proceeds of foreign currency – Respondents sold foreign currency to another full-fledged money changer duly licensed by the RBI against pay orders received from them - pay orders received were credited into the account of the respondent - DRI effected the seizure of the credit balance lying in the credit of the respondent – respondent themselves were not involved in the smuggling activities of selling of foreign currency – Held that: - if one turns to the findings recorded by the Tribunal, the Tribunal was perfectly justified in holding that the order of the Commissioner ordering confiscation was the order in contradiction. At one stage, the Commissioner has rightly interpreted Section 121 of the Act holding that it can only be applied to the immediate proceeds of the goods smuggled. However, while applying the provisions of Section 121 to the factual aspects of the case, the Commissioner committed an error which was rightly spotted by the Tribunal. The Tribunal was perfectly justified in holding that the amounts seized which was lying in the bank could not be considered to be a sale proceeds of the smuggled foreign currency.
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2010 (1) TMI 516
- delay in adjudication – show cause notices issued but no reply was filed – for the period of 27 years – no action taken by department - No fault can be attributed to the petitioners for this delay - The absence of relevant record due to lapse of more than 30-35 years is also a factual aspect which needs to be taken into account - respondents cannot be allowed to re-open the proceedings.
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2010 (1) TMI 508
Allegation of acts and omissions - The petitioner is contending that reopening of the matter at the present stage after more than 22 years would cause serious detriment and prejudice to the petitioner. It is submitted that the Department has failed and neglected to explain as to why they took 13 years from the date of alleged issuance of the said memorandum to commence adjudication proceedings – Held that: - It is no doubt true that no period of limitation in the Statute to complete the adjudication proceeding is prescribed. But the Apex Court in the case of Government of India v. The Citedal Fine Pharmaceuticals Madras & Ors. – [1989 -TMI - 42485 - SUPREME COURT OF INDIA] was pleased to rule that in absence of any period of limitation, it is settled that every Authority is to exercise the power within a reasonable period - What would be reasonable period would depend upon the facts of each case. No hard and fast rules can be laid down in tins regard as the determination of the question will depend upon the facts of each case - The Department is not entitled to re-open old matters in this manner.
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2009 (12) TMI 1067
Issues:
Violation of provisions of section 8(1) and 8(2) of the Foreign Exchange Regulation Act, 1973.
Analysis:
The appeal was filed against an Adjudication Order imposing a penalty for contravention of the Foreign Exchange Regulation Act. The appellant purchased foreign exchange without permission and sold it at unauthorized rates. The appellant claimed his statement was coerced and he did not earn from the transactions. The statutory scheme prohibits dealing in foreign exchange without authorization. The appellant admitted to facilitating transactions for friends involving foreign exchange. The person buying the foreign exchange admitted to dealing without an RBI license. The appellant retracted his statement, but failed to prove coercion. Legal precedents state retracted confessions can be valid if proven voluntary and corroborated. The appellant's assertion of coercion lacked evidence. The tribunal found the appellant guilty of contravening the Act and upheld the penalty as appropriate given the gravity of the offense. The appeal was dismissed, and the penalty was confirmed.
This judgment highlights the importance of adhering to foreign exchange regulations and the consequences of contravening such laws. The burden of proof lies with the accused to establish coercion in statements. The tribunal emphasized the need for corroborative evidence to support retracted confessions. The decision underscores the seriousness of unauthorized foreign exchange dealings and the need for penalties to reflect the gravity of such offenses.
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2009 (12) TMI 1066
Issues:
Violation of provisions of section 8(1) and 8(2) of the Foreign Exchange Regulation Act, 1973; Retraction of confessional statement by the appellant; Opportunity for cross-examination of witnesses denied; Quantum of penalty imposed.
Analysis:
The appeal was filed against an Adjudication Order imposing a penalty for contravention of sections 8(1) and 8(2) of the FER Act. The appellant did not appear, but written submissions were considered. The appellant was found with US $4,500 and Indian currency of Rs. 20,000. The appellant claimed financial constraints and denied conscious possession of the foreign exchange, alleging false implication. The appellant's confessional statement was retracted, citing coercion. However, lack of evidence supporting coercion led to dismissal of this claim.
The statements of witnesses corroborated the appellant's involvement in foreign exchange transactions. The appellant's retracted statement was considered valid, and the denial of cross-examination was justified based on legal principles. The appellant's involvement in the sale and purchase of foreign exchange was confirmed, despite his denial in response to the show-cause notice. The appellant failed to explain the source of the foreign exchange, and his selective acceptance of statements was not permissible.
The tribunal found the appellant guilty of contravening sections 8(1) and 8(2) of the FER Act. The penalty imposed was deemed appropriate and proportional to the gravity of the offense. The tribunal upheld the impugned order, dismissing the appeal for lack of merit. The pre-deposited amount was to be appropriated towards the penalty, concluding the judgment.
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2009 (12) TMI 519
Whether, even for the period prior to 31-7-1995, such deposits in foreign currency needed to be made, necessarily, by the Non-Resident Indian account holder, in person?
Held that:- As prior to 31-7-1995 there was no requirement that the deposits in NRE accounts could not be made by persons other than the NRE accounts holders themselves. For the subsequent period, that is after 31-7-1995, it is not in dispute that such deposits could only be made by the account holder himself, in person.no useful purpose would be served by relegating the petitioners to seek their alternative remedy of appeal under section 90 of the FEMA, particularly, because, according to us, that would not, now, be an equally efficacious remedy. In view of the foregoing discussion, these writ petitions are allowed. The show-cause notices and the consequent adjudication orders are set aside. See case of Citi Bank [2009 (7) TMI 1203 - DELHI HIGH COURT]
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2009 (12) TMI 514
Issues Involved:
1. Validity of charges framed under Section 56 of FERA for alleged violations of Sections 9(1)(f)(i) and 8(1) of FERA read with Section 64(2) of FERA, 1973.
2. Reliance on retracted confessional statements.
3. Role and involvement of the petitioner, Piyush Saxena, in the alleged contraventions.
4. Admissibility and voluntariness of confessional statements.
Issue-wise Detailed Analysis:
1. Validity of Charges under Section 56 of FERA:
The petitioners challenged the charges framed under Section 56 of FERA for alleged violations of Sections 9(1)(f)(i) and 8(1) read with Section 64(2) of FERA, 1973. The allegations included over-invoicing and unauthorized transfer of foreign exchange. The court examined whether the charges were substantiated by evidence, particularly focusing on the confessional statement of Sudesh Saxena, which was later retracted. The court found that the prosecution's case heavily relied on this retracted statement without substantial corroboration from independent evidence.
2. Reliance on Retracted Confessional Statements:
The court referred to the Supreme Court's rulings in Vinod Solanki v. UOI and Noor Aga v. State of Punjab, emphasizing that retracted confessions must be corroborated by independent and cogent evidence. The court noted that the prosecution failed to provide such corroboration. The judgments highlighted that a retracted confession cannot be the sole basis for conviction unless it is voluntary and corroborated by other evidence. The court observed that the prosecution did not discharge its burden to prove the voluntariness of the retracted confession.
3. Role and Involvement of Piyush Saxena:
Piyush Saxena contended that she was merely a housewife and not involved in the firm's business transactions. The court reviewed the documents and statements, noting that while Piyush Saxena was listed as the proprietor, the day-to-day operations were managed by her husband. The court found that the evidence did not conclusively establish her active involvement in the alleged contraventions. The court left the issue open for further evidence but noted that the prima facie case against her was weak.
4. Admissibility and Voluntariness of Confessional Statements:
The court scrutinized the confessional statement of Sudesh Saxena, which was retracted, and the circumstances under which it was obtained. The court reiterated the legal principle that confessions must be voluntary and free from coercion to be admissible. The court found that the prosecution did not provide evidence to rebut the petitioners' claims of coercion and duress. The court emphasized that the burden of proving the voluntariness of a retracted confession lies with the prosecution, which was not met in this case.
Conclusion:
The court concluded that the order framing charges against the petitioners could not be sustained due to the lack of corroborative evidence and the prosecution's failure to prove the voluntariness of the retracted confession. The revision petitions were allowed, and the charges framed on 30-5-2007 were set aside. The bail bonds of the petitioners were discharged.
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2009 (12) TMI 508
Issues:
1. Application for waiver of pre-deposit of penalty amount under the Foreign Exchange Regulation Act, 1973.
2. Imposition of penalty for acquiring foreign exchange in contravention of the Act.
3. Delay in adjudication process.
4. Financial status and assets of the petitioner.
5. Modification of the order for deposit and security.
Analysis:
The High Court of Delhi dealt with a writ petition challenging the order of the Appellate Tribunal for Foreign Exchange dismissing an application for waiver of pre-deposit of a penalty amount imposed under the Foreign Exchange Regulation Act, 1973. The penalty was imposed for acquiring foreign exchange in contravention of the Act, with the petitioner contesting the amount based on lack of corroborative evidence. The petitioner, an ex-employee of British Airways, faced allegations of making bulk purchases abroad and bringing them to India without corresponding foreign exchange withdrawals.
The Court noted the significant delay between the issuance of the show-cause notice in 1982 and the adjudication order in 1991, highlighting the prolonged pendency of the petitioner's appeal. Considering the petitioner's financial circumstances, including being unassessed for income tax and residing in modest accommodations, the Court directed a reduced deposit of Rs. 1,00,000 within a month, along with providing security of immovable property. The petitioner was instructed not to encumber the specified property and to submit the necessary security and undertaking to the Enforcement Directorate within four weeks.
In conclusion, the Court disposed of the writ petition, emphasizing that the observations made were specific to the petition and would not influence the Appellate Tribunal in deciding the appeal on its merits. The modified order required the petitioner to comply with the revised deposit and security conditions within the specified timelines, ensuring enforcement through the relevant authorities.
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2009 (11) TMI 1035
Issues Involved:
1. Contravention of Section 9(1)(a) of FER Act, 1973.
2. Admissibility and reliability of evidence.
3. Immunity under Foreign Exchange Bonds (Immunities and Exemption) Act, 1991.
4. Burden of proof and circumstantial evidence.
5. Quantum of penalty.
Detailed Analysis:
1. Contravention of Section 9(1)(a) of FER Act, 1973:
The appellant was penalized for receiving payments in India under the instruction of a person resident outside India, violating Section 9(1)(a) of the FER Act, 1973. The appellant argued that the cheques were gifts from NRE accounts of NRIs, thus not constituting foreign exchange. However, the Tribunal found no evidence of a genuine relationship or reason for such substantial gifts, leading to the conclusion that compensatory payments were made, thus establishing the contravention.
2. Admissibility and Reliability of Evidence:
The appellant challenged the admissibility of documents received from Mrs. Meera Bhardwaj, arguing they violated Section 72 of the Foreign Exchange (Authentication of Documents) Rules. The Tribunal upheld the admissibility, noting the documents were received through official channels. Additionally, the Tribunal referenced Supreme Court judgments to assert that retracted confessional statements can be reliable if voluntary and corroborated by other evidence.
3. Immunity under Foreign Exchange Bonds (Immunities and Exemption) Act, 1991:
The appellant claimed immunity under the Foreign Exchange Bonds (Immunities and Exemption) Act, 1991. The Tribunal clarified that the Act only grants immunity against receiving foreign exchange payments but not for making payments to non-residents. Thus, the appellant's transactions did not qualify for immunity under the Act.
4. Burden of Proof and Circumstantial Evidence:
The Tribunal emphasized that circumstantial evidence can suffice to establish guilt. It cited Supreme Court rulings, including Trimukh Maroti Kirkan v. State of Maharashtra, to assert that in cases where direct evidence is unavailable, the burden shifts to the accused to explain the circumstances. The appellant failed to provide a satisfactory explanation for the substantial gifts, leading to an adverse inference.
5. Quantum of Penalty:
The Tribunal found the penalty of Rs. 10,50,000 proportionate to the contravention and not excessive. Given the severity of the violation, the Tribunal deemed the penalty appropriate and dismissed the appeal for lack of merit.
Conclusion:
The appeal was dismissed, upholding the penalty for contravention of Section 9(1)(a) of the FER Act, 1973. The Tribunal found the evidence admissible and reliable, rejected the claim of immunity under the Foreign Exchange Bonds (Immunities and Exemption) Act, 1991, and determined that the burden of proof was not met by the appellant. The penalty imposed was deemed appropriate and not excessive.
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2009 (11) TMI 679
Whether the correctness and legality of the order of the Adjudicating Authority dated 30.3.2005 which had become the subject matter of an appeal before the Appellate Tribunal has to be examined under the provisions of the FERA or the FEMA?
Held that:- In the instant case the provisions of Section 52(2) read with the provisions of the FERA which is also a legislation dealing with economic offences, clearly stipulates that any person aggrieved by an order of the Adjudicating Authority may appeal to the Appellate Board within a period of 45 days; the Appellate Board may entertain the appeal after the expiry of 45 days but not beyond 90 days. This is the outer limit and a mandate. Application of Section 5 of the Limitation Act is excluded.
Under Section 52 of the FERA, it is clear that the outer limit for filing an appeal is 90 days; beyond the period of 90 days the Court has no power to condone the delay. The Appellate Tribunal on 26.3.2005, had rightly dismissed the appeal on this ground by invoking Section 52 (2) of the FERA holding that the delay of 118 days could not be condoned; the outer limit being 90 days. The said order calls for no interference.
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2009 (11) TMI 568
Foreign exchange violation – summons - Act has deliberately chosen not to apply the concept of summons used either under the Code of Civil Procedure or under the Code of Criminal Procedure, but has chosen to apply analogous provisions found in the Income Tax Act - while interpreting the scope and width of Section 37 of FEMA, one cannot apply the concept of summons as available to a Civil Court under the Code of Civil Procedure, only because the power of a Civil Court was conferred on the authorities Apex court has held that in respect of Section 40 of the FERA, held that when a person is summoned and examined under Section 40, it cannot be presumed that a statement will be obtained under pressure or duress. In fact it was held in that case that such a statement obtained does not infringe the constitutional guarantee of protection against self-incrimination under Article 20(3) of the Constitution. The petitioner in essence seeks for a writ of prohibition against the department for having issued the summons by the exercise of the powers vested on them under Section 37 read with Section 131 of the Income Tax Act. In Standard Chartered Bank and Others v. Directorate of Enforcement and Others which arose out of the FERA violation, the Supreme Court spelt out the parameters in entertaining a writ petition against initiation of adjudication proceedings. - the attempt by the petitioner to stall the summons issued by the respondent has to be necessarily rejected
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2009 (11) TMI 507
Whether there was not an iota of evidence before the Appellate Tribunal to draw the conclusion that at the time when the contravention was committed the petitioner was incharge of and was responsible to the company for the conduct of the business of the company?
Held that:- In the present case, the record reveals that this was an admission by the company itself through its Company Secretary in the reply dated 26-3-2001 wherein it was stated that the present petitioner is a director of the company. This was an answer to the specific averment made in the show-cause notice that Shailendra Swarup was incharge of the affairs of the company and responsible to it for the conduct of its business. This finding of the Adjudicating Authority was not faulted with by the Appellate Tribunal and rightly so. Appeal dismissed.
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2009 (11) TMI 504
Direction to petitioner as a legal representative to deposit ₹ 1,00,000,00 from the estate of the deceased, i.e., Mr. Bharat Thacker
Held that:- The petitioner being a legal representative will be liable to the extent that she has inherited the estate from late Mr. Bharat Thacker. The estate of late Mr. Bharat Thacker is liable and can be attached and forfeited under provisions of the Foreign Exchange Regulation Act, 1973, on account of the adjudication order passed against Mr. Bharat Thacker. This is, therefore, necessary to enquire about the total estate left behind by late Mr. Bharat Thacker. No such enquiry was made and gone into. The petitioner herein has also not filed any affidavit stating and giving details of the estate left behind by late Mr. Bharat Thacker, what has happened to the said estate and who has inherited the same. In case late Mr. Bharat Thacker has left behind any estate, learned Appellate Tribunal is competent to pass an appropriate order to protect interest of the respondent department, even if the same is in possession/control of a third party, other than the petitioner herein. The petitioner cannot obviously object or protest against any such order, for she is not adversely affected and has not inherited the estate. Inheritance is subject to the first charge of the respondent.
In these circumstances, the impugned order dated 8-2-2007, to the extent it relates to appeal No. 37/2000 is set aside and the matter is remanded back for fresh adjudication on the application for waiver of pre-deposit
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2009 (11) TMI 495
Issues Involved:1. Continuation of investigations under FERA after its repeal. 2. Validity of the opportunity notice issued under Section 61(2) of FERA. 3. Validity of the appointment of the Enforcement Officer under Section 4 of FERA post-repeal. Issue-wise Detailed Analysis:Ground No. 1: Continuation of Investigations under FERA after its RepealSection 49 of the Foreign Exchange Management Act (FEMA), 1999, addresses the repeal of the Foreign Exchange Regulation Act (FERA), 1973. Sub-section (3) prohibits courts from taking cognizance of offences under the repealed Act after two years from the commencement of FEMA. However, sub-section (4) states that offences committed under FERA shall continue to be governed by its provisions as if it had not been repealed. This implies that investigations into offences committed under FERA can continue post-repeal. The court clarified that sub-section (5)(a) of Section 49 does not prohibit the continuation of investigations but validates actions initiated under FERA to the extent they are not inconsistent with FEMA. Additionally, Section 6 of the General Clauses Act supports the continuation of investigations, legal proceedings, or remedies as if the repealing Act had not been passed. The court concluded that investigations into FERA offences could continue even after its repeal, dismissing the petitioners' argument. Ground No. 2: Validity of the Opportunity Notice Issued under Section 61(2) of FERAThe petitioners argued that the opportunity notice dated 22nd May 2002 did not comply with Section 61(2) of FERA, as it provided insufficient time to respond. The court noted that the notice is not a show-cause notice but an opportunity for the accused to show that they had the requisite permission from the Reserve Bank of India (RBI). The notice's purpose is to allow the accused to present any permission they might have had, not to justify their actions. The court observed that the petitioners did not claim to have the requisite permission in their reply. The court also noted that the respondents considered the petitioners' reply before filing the complaint, as evidenced by the selective prosecution of some noticees. The court found no merit in the argument that the three-day period was insufficient, as the petitioners did not indicate they had the requisite permission from RBI. The court dismissed the petitioners' contention, citing the Supreme Court's decision in Standard Chartered Bank v. Directorate of Enforcement, which clarified the limited scope of the opportunity notice under Section 61(2) of FERA. Ground No. 3: Validity of the Appointment of the Enforcement Officer under Section 4 of FERA Post-RepealAlthough not pressed during arguments, the petitioners contended in their written synopsis that the appointment of the Enforcement Officer under Section 4 of FERA was invalid post-repeal. They argued that FEMA does not provide for offences and violations of the nature alleged in the complaint, and investigations should be conducted by an officer not below the rank of an Assistant Director. The court found no merit in this contention, stating that no provision of FEMA invalidates the appointment of an Enforcement Officer under FERA. The court clarified that the powers of an Enforcement Officer to investigate offences under FERA do not end with the enactment of FEMA. The court concluded that the appointment of the Enforcement Officer was not inconsistent with FEMA, dismissing the petitioners' argument. Conclusion:The court dismissed the petition, finding no merit in the arguments presented by the petitioners. The court held that investigations into offences committed under FERA could continue post-repeal, the opportunity notice complied with Section 61(2) of FERA, and the appointment of the Enforcement Officer under FERA remained valid after its repeal.
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2009 (10) TMI 1003
Issues:
- Appeal against penalty imposed for contravention of provisions of PER Act, 1973
- Allegations of making payments to persons outside India without RBI permission
- Dispute regarding appellant's role in transactions on behalf of the firm
- Legal interpretation of FERA, 1973 provisions
- Burden of proof on the appellant regarding coercion in confessional statement
- Corroboration of evidence in support of confessional statement
- Consideration of penalty amount based on gravity of the offense
Analysis:
The judgment delivered by Km. Vijay Laxmi, Member of the Appellate Tribunal for Foreign Exchange, pertains to an appeal filed against a penalty imposed on the appellant for contravening the provisions of Section 9(1)(a) & 9(1)(d) of the PER Act, 1973. The appellant, a Manager of a firm, was charged with making payments to individuals in India and to a person in Saudi Arabia without RBI permission. The appellant denied the charges, claiming coercion in his confessional statement, which was later retracted. However, the tribunal found the charges proved based on the appellant's admissions and corroborating evidence, dismissing the appellant's defense of being merely an employee acting on instructions. The tribunal emphasized the importance of regulatory mechanisms under FERA, 1973 to prevent economic offenses.
The judgment highlighted the burden of proof on the appellant to establish coercion in the confessional statement, citing legal precedents. Despite the retraction, the tribunal found the confessional statement corroborated by documentary and circumstantial evidence, leading to the conclusion that the appellant was responsible for the transactions. The tribunal rejected the appellant's argument of being a poor individual, emphasizing the gravity of economic offenses and the need to uphold penalties commensurate with the offense. Ultimately, the tribunal upheld the penalty imposed, directing the appellant to pay within a specified timeframe, failing which legal action would be taken for recovery.
In conclusion, the judgment underscores the importance of abiding by regulatory provisions to prevent economic offenses, holding individuals accountable for their actions even in cases of retracted confessional statements. The tribunal's decision to uphold the penalty serves as a deterrent against financial misconduct, emphasizing the need for strict adherence to legal frameworks governing foreign exchange transactions.
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2009 (10) TMI 1002
Issues:
- Appeal against Adjudication Order imposing penalty for contravention of Foreign Exchange Regulation Act, 1973.
- Non-compliance with pre-deposit of penalty amount.
- Legal provisions under FERA, 1973 regarding pre-deposit of penalty amount.
- Applicability of Supreme Court judgment in cases of non-compliance with statutory provisions.
Analysis:
The judgment pertains to an appeal filed against an Adjudication Order imposing a penalty for contravening the provisions of the Foreign Exchange Regulation Act, 1973. The appellant, Javer Chand T. Nahar, received an amount in Indian currency from a local person under instructions from a person resident outside India without the permission of the Reserve Bank of India, leading to the penalty of Rs. 6,000. The appellant sought dispensation from pre-deposit of the penalty amount, which was rejected by the tribunal due to lack of undue hardship. Despite multiple opportunities and notices, the appellant failed to comply with the tribunal's orders, indicating a lack of bonafide. The advocate representing the respondent argued for the dismissal of the appeal based on non-compliance with judicial orders as per Section 52(2) of the FER Act.
The judgment delves into the legal provisions of FERA, 1973, specifically Section 52, which mandates the deposit of the penalty amount for filing an appeal unless dispensation is granted. The tribunal highlighted the necessity of complying with the statutory scheme and cited a Supreme Court judgment (Navin Chandra Chhotelal v. Central Board of Excise & Customs) to emphasize that failure to make the pre-deposit can lead to the rejection of the appeal. The tribunal reiterated that the Appellate Authority is empowered to dismiss appeals for non-compliance with the statutory provisions, preventing the hearing of the appeal on its merits.
In conclusion, the tribunal found that the appellant had not adhered to the tribunal's orders despite ample opportunities, leading to a lack of equity in the appellant's favor. Citing the statutory scheme under FERA, the tribunal agreed with the respondent's advocate that the appeal should be dismissed due to non-compliance with the pre-deposit requirement. Consequently, the appeal was dismissed, and the record was directed to be consigned to the Record Room, closing the legal proceedings in this matter.
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