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TMI Blog2017 (1) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs.15 lakhs was levied on the appellant. The three remittances were USD 24,03,000 on 22nd September, 1993, USD 96,000/- on 23rd March, 1993 and JPY 11,24,500/- on 26th March, 1993. 3. Aggrieved by the order of the Adjudicating Authority, the appellant preferred an appeal before the Appellate Tribunal wherein though pre-deposit penalty was dispensed with however, the appeal was dismissed vide the impugned order dated 29th May, 2012. Hence the present appeal. 4. Learned counsel for the appellant respondent raises a preliminary objection as to the maintainability of the present appeal without the pre-deposit. Learned counsel for the appellant has pointed out towards the order impugned wherein the pre-deposit of the penalty was waived. Hence this Court is inclined to entertain the present appeal without insisting upon pre-deposit of penalty. 5. Learned counsel for the appellant contends that for three remittances dated 23rd March, 1993, 26th March, 1993 and 27th September, 1993 the appellant had placed on record the Bills of Lading. Since the show cause notice was issued on 27th May, 2002, just before the sunset period and served on the appellant on 15th February, 2006 after a la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Control Manual provides as under: 7A.20 (i) It is obligatory on the part of importers to submit Exchange Control copy of Bills of Entry for Home Consumption/ Postal/Wrappers to the authorized dealer through whom relative remittance was made as evidence that the goods for which the payment was made have actually been imported into India. Authorised dealer should ensure that in all cases, including cases of advance remittances permitted vide paragraph 7A.10, these are submitted by their importer customers and are verified. In respect of imports made on D/A basis, since goods would normally be cleared before the due date of payment, authorised dealers should insist on production of documentary evidence of import i.e. Exchange Control copy of Bill of Entry for Home Consumption/Postal/Wrappers at the time of effecting remittance of the import bill. Authorised dealers should also advise this requirement to their importer customers in writing while delivering the documents against acceptance. NOTES: A. In case of goods imported and stored by 100% Export Oriented Units/Units in Export Processing Zones and Free Trade Zones in bonded warehouses, it will be in order for authorised dealers t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the end of the quarter to which the statement relates. Exchange Control copy of Bill of Entry for Home Consumption/postal wrappers should be preserved by authorised dealers for a period of one year from the date of its verification as required under paragraph (iii) above. However, in respect of cases which are under investigation by investigating agencies, the Exchange Control copy of Bill of Entry for Home Consumption/postal wrappers should be preserved till the investigating agency concerned gives clearance for destruction. 9. This Court in Xerox Modi Corp Ltd. (supra) relying upon the decision of the Supreme Court in the decision reported as 1972 SC 330 Bareily Electricity Supply Co. Ltd. vs. The Workmen & Ors. held: 19. Having heard learned counsels for the parties and perused the record, as well as the order in original and the impugned order, this Court is of the view that the impugned order of the appellate tribunal and the order-in- original suffer from serious infractions of the principles of natural justice and, even on merits, it appears that the appellants were able to provide sufficient material on record to raise a serious doubt about the alleged violation of FEMA. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original documents. In Vipin Gupta (supra) , the Court observed that the noticee could not have been expected to retain the proof of all remittances for over six years. The explanation given by it for not being able to immediately furnish the exchange control copies of the Bill of Entries was bonafide. I may note that in that particular case, during the appellate stage, the appellant had secured the certified copies of documents to prove the import of goods against some of the remittances - which is not the position in the case in hand. However, the same does not detract from the fact that notices have been issued belatedly - even though there is no period of limitation prescribed therefor. For such delays, the noticee cannot be made to suffer and the circumstance pleaded by the noticee that the documents have not been preserved or are not available would have to be given due weightage. 27. In Sunil Engineering Corporation (supra), the petitioner raised a similar plea that the authorized dealer was not shown to have issued a reminder in terms of the ECM. The Court observed as follows: "6. Petitioners submit that original Bills of Entry had also been tendered but they were not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of propriety of imposing penalty in the facts of the case. Decisions are legion in support of the proposition that penalty will not be imposed in quasicriminal proceedings merely because it is lawful to do so. Whether penalty should be imposed or not is a matter of discretion to be exercised judicially and on a consideration of all the relevant circumstances. In this connection reference may be made to the decisions in Hindustan Steel Ltd. v. State of Orissa, [1972] 83 ITR 26 (SC), Anantharam Veerasinghaiah and Co. v. CIT, [1980] 123 ITR 457 (SC) , and in Cement Marketing Co. of India Ltd. v. Asst. CST AIR 1960 SC 346. There was no such consideration in this case at all. 19. That the proceedings for imposition of penalty under the Act are of quasi-criminal nature follows from the nature of the proceedings itself. It is also settled law that where proceedings are penal in nature, they are quasi-criminal proceedings. (See the decisions in CIT v. Anwar Ali, [1970] 76 ITR 696 (SC), and Shanti Prasad Jain v. Director of Enforcement, [1963] 2 SCR 297). The consequence of this is two fold, first is the question of mens rea before finding of guilt and second is the question of mens ..... X X X X Extracts X X X X X X X X Extracts X X X X
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