2011 (1) TMI 1241 - AT - FEMA

Transfer of share in favour of NRI - Permission for such transfer was not obtained from RBI - Compounding of offence by RBI - Imposition of penalty - Held that - offence has taken place when FERA was in force as it is clearly reflected by the letter of RBI who refused to entertain the application for compounding stating that the violation is under FERA and the provision of compounding was not there under the said Act. The compounding is permissible only under the provisions of FEMA. The show cause notice in the present case is issued on 20th May, 2009 i.e. after the expiry of 2 years of sun set period provided under Section 49(3) - violation has taken place when FERA was in force and therefore under Section 49(3) of FEMA it was necessary for the Directorate Enforcement to take notice of the said violation before 31st May, 2006 i.e. before expiry of sun set period. As the show cause notice was issued in 2009 for violation of provision of FERA the same cannot be set to be within limitation and in accordance with law - Decided in favour of appellant.

Issues involved:
1. Violation of foreign exchange regulations.
2. Imposition of penalties by the Special Director Enforcement.
3. Contention regarding mens rea for the commission of the offense.
4. Question of limitation in taking action for violation.
5. Continuation of offense due to non-permission from RBI.
6. Effect of filing an application for compounding on admission of violation.
7. Directorate Enforcement's action based on RBI's notification.
8. Time limitation for taking notice of violations under FEMA.

Detailed Analysis:
1. The judgment by the Appellate Tribunal for Foreign Exchange, New Delhi deals with the violation of foreign exchange regulations by a company involved in software development. The company, being a 100% export-oriented unit, transferred shares to non-resident Indians without obtaining the required permission from the Reserve Bank of India (RBI). This violation led to the imposition of penalties by the Special Director Enforcement, which the company and its directors appealed against.

2. The penalties imposed by the Special Director Enforcement were challenged on various grounds. The first contention raised was the absence of mens rea for the commission of the offense, along with the argument that no dividends were paid to shareholders, resulting in no loss of foreign exchange. Additionally, the question of whether the show cause notice was barred by limitations was raised by the appellant's counsel, while the respondent supported the penalty imposition.

3. The issue of limitation in taking action for the violation was crucial in this case. The judgment highlighted that under the Foreign Exchange Regulation Act (FERA), there was a prescribed limitation for violations. However, under the Foreign Exchange Management Act (FEMA), the Adjudicating Officer could not take notice of contraventions under FERA after the expiry of a specific period from the commencement of FEMA. As the offense occurred when FERA was in force, the timing of the show cause notice and the limitation period under FEMA became central to the decision.

4. The Tribunal analyzed the argument that the offense was a continuing one due to the lack of permission from RBI. However, it was determined that the offense could not be considered ongoing as the share transfer and issuance of bonus shares occurred in specific instances without subsequent violations. The filing of an application for compounding was also discussed, with the Tribunal clarifying that admission of violation through such an application did not affect the limitation aspect.

5. Furthermore, the judgment addressed the Directorate Enforcement's action based on information from RBI and the argument that such action was prompted only after RBI's notification. The Tribunal emphasized that there was no provision under FEMA to extend the limitation period based on the date of knowledge of the contravention. Ultimately, the appeals were allowed, and the penalties imposed were set aside due to the violation falling outside the limitation period specified under FEMA.

6. The Tribunal concluded that the violation occurred under FERA, necessitating action within the limitation period specified by FEMA. As the show cause notice was issued after the expiration of the limitation period, the penalties imposed on the appellants were deemed invalid. The judgment focused on the legal intricacies of limitation periods, continuing offenses, and the impact of admissions on enforcement remedies, providing a comprehensive analysis of the issues involved in the case.

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