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TMI Blog1995 (3) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... or to receive from a person resident outside India a payment in rupees shall, except with the general or special permission of the Reserve Bank, do or refrain from doing anything, or take or refrain form taking any action, which has the effect of securing (a) that the receipt by him of the whole or part of the foreign exchange or payment is delayed, or (b) that the foreign exchange or payment ceases in whole or in part to be receivable by him. (2) where a person has failed to comply with the requirements of sub-section (1) in relation to any foreign exchange or payment in rupees, the reserve Bank any give to him such directions as appear to be expedient for the purpose of securing the receipt of the foreign exchange or payment, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 45,594.02. In 1977, the appellant applied to the Reserve Bank of India for permission to remit Malaysian dollars 45,594.02 to the Malaysian concern. This was refused by the Reserve Bank of India on March 13,1979. The appellant made a further representation to the Reserve Bank of India for permission to make the remittance. In 1981, the Reserve Bank of India wrote to the appellant asking under what circumstances the appellant had agreed to write off the dues on account of erection charges and whether the Reserve Bank's approval to write off the debt had been obtained. In answer to this letter, the appellant sought to explain the circum stances under which the erection charges were written off and requested for grant of approval for non-pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Directorate, holding that the charges against the appellant company and its officer as contained in the show-cause notice stood proved. A penalty of Rs. 57,000 was imposed on the appellant company and an amount of Rs. 5,000 on the officer. Both the appellants have deposited the amount imposed by way of penalty. Separate appeals were preferred from the adjudication order by the appellant company and its officer before the Foreign Exchange Regulation Appeal Board. Apart from contending that the appellant company had not in fact given up its claim against the Malaysian concern, it was also contended by the appellant company and its officer before the Board, that it had applied to the Reserve Bank of India for permission to give up the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994] 45 ECC 151 ; Consmique Exports Ltd. v. Director of Enforcement [1994] 76 Taxman 299 ; Tata Engineering and Locomotive Co. Ltd. v. Special Director of Enforcement [1991] 55 Taxman 85 and Siraj Sons v. Director of Enforcement [1992] 63 Taxman 178. In addition, the appellants have also relied upon a judgment of the Karnataka High Court in United Breweries Ltd. v. Assistant CIT [1995] 211 ITR 256 and of the Madras High Court in M. Ct. M. Corporation Pvt. Ltd. v. Director of Enforcement, AIR 1989 Mad 141. The respondents on the other hand have contended that as the offence had already been committed under section 16(1)( b ), the Board had the jurisdiction to hold the appellants guilty of the offence and that the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by the word "previous" means that the permission in such case could be previous or subsequent to the fact in respect of which permission is to be granted. The reasoning is applicable in its entirety to the provisions of section 16 of the Act where the word "permission" is not subject to any qualification or limitation that it could only be previous. Thus, following the Supreme Court judgment permission may be sought for at any time even subsequent to the act sought to be restricted. In other words, it would appear that the commission of the acts envisaged under section 16(1)( a ) and ( b ) does not complete the offences under those sub-clauses. The offence would be completed if the acts are done without permission of the Reserve Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in LIC of India v. Escorts Ltd. [1986] 59 Comp. Cas. 548, the Foreign Exchange Regulation Appellate Board has itself held that the initiation of adjudication proceedings prior to the Reserve Bank of India taking a final decision on an application for permission where such permission is not expressly required to be previous, is premature and misconceived. In that view of the matter, the appeals must succeed. The appellants have, however, fairly conceded before us that they would not press for setting aside the entire adjudication proceedings but that the impugned order of the Board for the purpose of being decided in accordance with the Comp. Cas. 548. According, the appeals are allowed and the impugned order of the Board dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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