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TMI Blog2016 (2) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty of ₹ 1.20 lakhs against the appellant Ole Peter Tollefson. In view of the above, the appeal is dismissed in respect of findings of contravention under Section 8 of FEMA, 1999 r/w relevant regulations and the order of the Adjudicating Authority is affirmed in this respect, however the amount of penalty imposed against appellant company is modified and reduced to ₹ 4 lakhs from ₹ 6 lakhs as has been imposed vide the adjudication order. The amount of penalty imposed against the appellant Ole Peter Tollefson is maintained. It has been informed that total penalty imposed by the Adjudicating Authority has been deposited by the appellants with the Enforcement Directorate. After the expiry of the period of appeal, the surplus amount of ₹ 2 lakhs shall be refunded to the appellant company. Copies of the judgment be sent to both the parties. - Appeal Nos. 5 & 136/2011 - - - Dated:- 15-2-2016 - Mr. Vinay Kumar Mathur, Chairperson Shri Dipendra Kumar, CA, for the Appellant Ms. Natasha Sarkar, Legal Consultant, for the Respondent ORDER I have heard Mr. Dipendra Kumar, Chartered Accountant for the appellants and Ms. Natasha Sarkar, L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the invoices pertained to the building material purchased for his use in Spain and related to a personal transaction and had nothing to do with M/s. Norscot Trading (P) Ltd., Mumbai. Rest of the five invoices related to transactions which had nothing to do with M/s. Norscot Trading (P) Ltd., Mumbai and that for preparing these invoices he had erroneously used the letterheads of M/s. Norscot Trading (P) Ltd., Mumbai. Three unsigned invoices were prepared for calculating his fees and not forwarded to the party and the invoices were in connection with the technical assistance given by him. 3. It is alleged that the documents seized from the premises of Ole Peter Tollefson also included a document containing the monthwise figures of commissions received/to be received by the appellant company from M/s. Dolfin Drilling Ltd., Scotland. It was stated that the said document contained amounts in dollars to be received by him as fees to his personal account from M/s. Dolfin Drilling Ltd., Scotland. It is alleged that page numbers 8, 9, 11, 12, 13, 14 of the documents seized from the residential premises of appellant Ole Peter Tollefson are six invoices raised by M/s. Norscot Trading (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Ole Peter Tollefson all over the world, including India and appellant Ole Peter Tollefson was using stationery of the company as it was one of his company. It was further held in respect of transaction of Euro 111250 that the invoice for this amount available in the seized documents, is the invoice which has been raised by the company on appellant Ole Peter Tollefson, in personal name and the address shown is of Spain. He has further held that invoice which shows the name as house/001 dated 15-4-2004 is indicative that the company had exported building materials, marble and granite, floor and wall tiles from India worth Euro 111250. Therefore the supply of marble and granite to Spain by the noticee company is an exported transaction and noticee company should have repatriated the value of the export to India within the stipulated period. 6. Regarding the transactions of US $ 883748.50 the Adjudicating Authority has relied upon the statement on oath by appellant Ole Peter Tollefson that the amount is in respect of commission due from Dolfin Drilling Ltd. in his personal capacity and also relied upon the copy of the agency agreement dated 20-12-2002 between Tollefson and Do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further contended that Section 2(1) of FEMA, 1999 says that export means taking out of India and for this purpose goods must have been exported. However in the instant case it is not alleged that any goods were exported only company stationery has been used for getting bank loans in Spain therefore the charge against the appellants is unsustainable. No evidence in support has been produced by the respondents. No copy of GR shipping bills, packaging list etc. have been filed to establish that any exports were actually made and since no exports were made Section 8 of FEMA is not attracted. The findings of the Adjudicating Authority are arbitrary and without any basis. The charge in respect of the main allegation has already been dropped on the basis of the statement on oath of the appellant Ole Peter Tollefson. Therefore, the charge under Section 8 is also liable to be dropped on the basis of the same statement. The appeal is therefore liable to be allowed. 10. Ms. Natasha Sarkar, Legal Consultant has submitted that the impugned order with regard to transactions of US $ 883748.50 is not in consonance with law however the department has not preferred any appeal against the findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he export was made and the foreign exchange was not repatriated the liability has been rightly fixed. In view of the above, she has prayed that the appeals may be dismissed and the order of the Adjudicating Authority be affirmed. 11. I have considered the submissions of ld. Chartered Accountant and ld. Legal Consultant and am of the view that the findings of the Adjudication Authority in respect of transactions involving US $ 883748.50 prima facie are not based on cogent reasons. The Adjudicating Authority has relied upon the statement of the appellant Ole Peter Tollefson for dropping the charges in respect of the said transactions. However he has not relied upon the other part of the statement of the same appellant in respect of the disputed transaction. The Respondent, Enforcement Directorate has not preferred appeal/cross appeal against the findings in respect of the transactions relating to US $ 883748.50. Therefore it is not within the purview of this Tribunal to record its findings in respect of dropping of charge in respect of transactions of US $ 883748.50. 12. As regards the disputed invoice of building material the execution and the contents of which have not been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorized representative. Since the alleged transaction relating to Euro 111250 is on the authenticated and genuine letterhead/pad of the company and is admitted to have been prepared by its representative/director it cannot be said that the disputed transaction is outside the scope of Section 8 FEMA, 1999 and by admitting the contents and signature through a statement under Section 37 of FEMA by Ole Peter Tollefson (which has not been retracted) indicate that the appellant company is liable for the repatriation of the amount involved and the same should be considered to be amount due upon the company. Since the appellant Ole Peter Tollefson has not filed any proof that he actually secured loan from bank in Spain therefore in view of the admission of the execution of the disputed invoice by the appellant, no other inference except that it related to export of building material can be inferred. The appellant company will thus be llegally liable for the acts or omissions committed by its representative who happens to be its director and practically all in all in the company. No interference in the findings of the Adjudicating Authority in respect of liability of the appellant company ..... X X X X Extracts X X X X X X X X Extracts X X X X
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