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TMI Blog2009 (12) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... 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] - WP (C) NOS. 7144 OF 2002, 196, 1967, 2345, 2356, 8272, 9172-9195 OF 2004, 2633, 8717 AND 8718 OF 2005, 5419 OF 2006 - - - Dated:- 18-12-2009 - BADAR DURREZ AHMED AND MS. VEENA BIRBAL, JJ. A.N. Haksar, Ateev Mathur, Sumit Bansal, Ajay Monga and Manish for the Petitioner. A.S. Chandhiok, B.V. Niren, Pratap, Ms. Rajdipa Behura, C.S. Chauhan and H.S. Parihar for the Respondent. JUDGMENT Badar Durrez Ahm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order that may be passed would not be implemented till further orders of this Court. Thereafter, adjudication orders have been passed in these matters, but the same have not been implemented because of the said interim orders passed by this Court. 4. During the pendency of these writ petitions, a petition raising an identical issue came up for hearing before one of us (Badar Durrez Ahmed, J.) and the same was disposed of on 19-4-2007 on the basis of the statement made by the counsel appearing for the respondent Union of India. The order reads as under : "The learned counsel for the respondent has taken instructions and she states that prior to 31-7-1995 foreign currency deposits could be made by individuals other than the NRI a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al against the order dated 16-1-2009, observed that the Single Judge had concluded that prior to 31-7-1995 there was no clear-cut stipulation that deposits/credits could not be made in the NRE accounts of NRI account holders in the absence of the account holders themselves. In this context, the Division Bench examined paragraph 13B.22 of the Exchange Control Manual, 1993, prior to its amendment as also after the amendment introduced by virtue of the notification dated 31-1-1996. We may also note that the unamended paragraph 13B.22 of the Exchange Control Manual, 1993 was in pari materia to paragraph 29B.8 of the Exchange Control Manual, 1987. Reference should also be made to the circular dated 31-7-1995 which has been reproduced in the Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aph 13B.22( c ). Prior to its amendment, paragraph 13B.22( c ) was as under : "( c )Proceeds of foreign currency/bank notes tendered by account holder during his temporary visits to India, provided authorized dealer is satisfied that account holder is still normally resident outside India (report on form A4 should be submitted)." After its amendment, paragraph 13B.22( c ) read as under : "( c )Proceeds of foreign currency/bank notes tendered by account holder during his temporary visits to India, provided these are tendered to the authorized dealer in person by the account holder himself and the authorized dealer is satisfied that account holder is still normally resident outside India (report on form A4 should be submitted)." 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circular, i.e., from 31st July, 1995, no NRE account of an NRI could be credited with the proceeds of foreign currency travellers cheques/foreign currency/bank notes unless and until the same was tendered in person by the account holder himself. There is no dispute that on and after 31st July, 1995, this was the position in law. However, prior to this, there has been no circular or requirement clearly pointing out that deposits in the NRE accounts could not be made by persons other than the NRE account holders themselves. " (Emphasis supplied) 9. We may observe that the Division Bench, in no uncertain terms, held that prior to 31-7-1995 there was no circular or requirement clearly pointing out that deposit in NRE accounts could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the account holder himself should have made the deposits. 12. We are unable to agree with these submissions made by Mr. Chandhiok. particularly, in view of the fact that the Division Bench specifically set out the unamended as well as the amended provision of paragraph 13B.22 and also specifically referred to notification dated 31-7-1995. There is no material to indicate that the Division Bench did not consider paragraph 13B.22 in its entirety. 13. Mr. Chandhiok also submitted that the circular dated 31-7-1995 was only a clarificatory circular and it only clarified something which was already there in paragraph 13B.22. Thus, according to him, the circular dated 31-7-1995 and the amendment introduced in paragraph 13B.22 did no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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