9911796707
TMI Blog2006 (2) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 49 of the Foreign Exchange Management Act, 1999? 2. Proceedings were initiated against the appellant - writ petitioner by the Assistant Director of Enforcement. Foreign Exchange Regulation Act. Government of India, Calicut under section 50 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA ) for contravention of section 9(1)( b ) and 9(1)( d ) of the Act. Ext. P1 order was passed by him on 29-1-1996 holding the appellant guilty of the charges levelled against him and a penalty of Rs. 35,000 was imposed on the appellant. In addition to the penalty imposed on the appellant, Rs.75,000 seized from him was confiscated to the Central Government under section 63 of FERA. Ext.P1 order has become final. Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... travenes section 13 of FEMA. It is further submitted that the provisions for recovery of the penalty under section 70 of FERA are inconsistent with the provisions of FEMA and, therefore, Ext. P2 proceedings are illegal. He also relied on section 49 of FEMA. 4. Sri John Varghese, learned Assistant Solicitor General of India, on the other hand submitted that the provisions of FERA for recovery of the amount of penalty are not inconsistent with the provisions of FEMA and that in view of section 49(3) of FEMA, the proceedings for recovery under FERA are saved. It was also submitted that the appellant could not resort to sections 14 and 15 of FEMA and that the proceedings initiated against him under section 70(1)( iii ) of FERA are legal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmation or declaration made or, any licence, permission, authorization or exemption granted or any document or instrument executed or any direction given under the Act hereby repealed shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; ( b )any appeal preferred to the Appellate Board under sub-section (2) of section 52 of the repealed Act but not disposed of before the commencement of this Act shall stand transferred to and shall be disposed of by the Appellate Tribunal constituted under this Act; ( c )every appeal from any decision or order of the Appellate Board under sub-section (3) or sub-section (4) of section 52 of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51 of FERA provides for an enquiry in the prescribed manner after giving the person affected a reasonable opportunity for making a representation. If in such enquiry the adjudicating authority is satisfied that the person concerned has committed the contravention, a penalty could be imposed. Section 52 of FERA provides for appeal to the Appellate Board within forty-five days from the date of the order passed by the adjudicating authority. Section 54 of FERA provides for a further appeal to the High Court, only on questions of law, against an order passed by the Appellate Board under section 52. The period of limitation provided for a further appeal to the High Court is sixty days from the date of communication of the decision of the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the proceedings under FEMA in respect of anything done or any action taken under FERA. The wording of clause ( a ) to sub-section (5) of section 49 of FEMA would indicate that such continuance is not in respect of any matter which is concluded under FERA. An adjudication or prosecution initiated under FERA shall be continued under that Act itself even after the commencement of FEMA. In view of sub-section (3) of section 49 of FEMA, sub-section (3) of section 49 is clear and imperative. Therefore, we are of the view that clause ( a ) of sub-section (5) of section 49 of FEMA does not control sub-section (3) of section 49 of FEMA. 7. There is another fallacy in the argument of the learned counsel for the appellant. If it is to be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-section (5) of section 49 could be invoked for a proceeding for adjudication under section 13 of FEMA in respect of a contravention under FERA, provided the bar under sub-section (3) of section 49 applies to the case and that no final order is passed in adjudication proceedings under FERA. In the case on hand, an order has been passed by the adjudicating authority under FERA and that order has become final. The contention raised by the learned counsel for the appellant that the appellant could get the beneficial provisions of FEMA under sections 13 and 14 runs contra to the contentions of the appellant that the adjudication order and the notice issued for recovery are inconsistent with the provisions of FEMA. 8. Sub-section (6) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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