2021 (3) TMI 34 - HC - FEMA

Offence under FEMA - Review Petition - Correction of clerical errors - respondent Sakunthala had received payment unauthorisedly in her residential premises - respondent Sakunthala that her husband Muthupal Chettiar was a partner in Kumaran and Co in Malaysia - The Appellate Board had found that there was a accidental slip and held in paragraph No.7 that ''After giving careful thought to the contentions of the parties, I find this to be a fit case where benefit of doubt should be given to the appellant at S.No.1 and 2 and therefore, hold that the charge against her have not been established'' - HELD THAT - Appellate Board upon satisfying that the accidental slip had occurred in the order attributable to an over-sight that the non-receipt of ₹ 75,000/- by the appellant at S.No.2 in the order conflicting with the conclusion reached in Appeal No.110 of 1984. Thus giving the benefit of doubt to the appellant at S.No.2, the Appellate Board has set aside the earlier order passed imposing punishment of fine. The said order is now under challenge in the present Civil Miscellaneous Appeal by the Enforcement Directorate contending that the Appellate Board has no power to review its onw order, as it is not a clerical or arithmetical error. Clerical or arithmetical mistakes in any decision or order passed by the Appellate Board or the adjudicating officer under this Act, or errors arising therein from any accidental slip or omission may, at anytime, be corrected by the Appellate Board or the adjudicating officer or his successor in office, as the case may be. But the order in the review was passed only after hearing the authorities also. The appellant is also not able to say what had happened after filing of the appeal. Whether the amounts are paid and whether the Petitioner is alive or not? Though the vakalath has been filed on behalf of the respondent, there is nobody appearing on behalf of her either in person or through counsel despite more than three chances have been given. Other than the above order, there is no other papers in the bundle. Therefore, we are constrained to confirm the order passed by the Appellate Board while dismissing the above Civil Miscellaneous Appeal

Summary

Issues involved:
1. Alleged unauthorized receipt of payment under the Foreign Exchange Regulation Act, 1973.
2. Review of the order passed by the Appellate Board.
3. Interpretation of Section 65 for correction of clerical errors.

Analysis:

1. The case revolved around the alleged unauthorized receipt of payment by the respondent in violation of Section 9(1)(a) and 9(1)(b) of the Foreign Exchange Regulation Act, 1973. The respondent, Sakunthala, received an amount of ?75,000 in two installments, claimed to be meant for another individual, Shri N. Loganathan, who was working in a company where the respondent's husband was a partner. The Enforcement Authorities issued a show-cause notice, and after an inquiry, imposed a fine of ?10,000 for the offense. The respondent then filed a review before the Appellate Board challenging this order.

2. The Appellate Board, upon review, found an accidental slip in its earlier order and decided to give the benefit of doubt to the respondent, setting aside the punishment of fine. The Enforcement Directorate contested this decision, arguing that the Appellate Board exceeded its power by reviewing its own order, claiming it was not a clerical or arithmetical error. However, Section 65 of the Act allows for the correction of clerical errors or errors arising from accidental slips or omissions in decisions or orders passed by the Appellate Board.

3. The Court noted that the review order was passed after hearing the authorities, indicating a proper legal process. Despite the appellant's counsel being unable to provide further details post-appeal filing, such as payment status or the respondent's current status, the Court found no representation from the respondent despite multiple opportunities. With no additional evidence presented apart from the order in question, the Court upheld the Appellate Board's decision, dismissing the Civil Miscellaneous Appeal and imposing no costs.

This detailed analysis of the judgment highlights the key legal issues, the sequence of events, and the application of relevant legal provisions in the case.