9911796707
TMI Blog2018 (3) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Director of Enforcement. 2. The operative part of the order reads as under: Ample opportunities in the form of Show Cause Notice No. T-4/869/B/DD(VS)/BE/2002 dated 22.05.2002 and Call Notices dtd. 14.2.14, 25.03.14 27.03.2014 were given to M/s Sushil Sales Corporation, Mumbai and Mangalore, Karnataka to submit the required evidence regarding utilization of the foreign exchange remitted for the purposes it was acquired but they have failed to submit any such evidence either in response to the SCN or at the time of personal hearing given to them. This leads to the conclusion that the subject imports have not taken place and thereby not utilizing the said foreign exchange acquired by M/s Sushil Sales Corporation, Mumbai for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Orders passed by the Adjudicating Authority being an Assistant Director of Enforcement or Deputy Director of Enforcement have been detailed under section 17 of the Foreign Exchange Management Act. 6. The relevant portion Section 17 FEMA is reproduced hereafter:- 17. Appeal to Special Director (Appeals):- (1) The Central Government shall, by notification, appoint one or more Special Directors (Appeals) to hear appeals against the orders of the Adjudicating Authorities under this section and shall also specify in the said notification the matter and places in relation to which the Special Director (Appeals) may exercise jurisdiction. (2) Any person aggrieved by an order made by the Adjudicating Authority, being an Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to such conditions as it may deem fit to impose so as to safeguard the realization of penalty. 9. As per settled principle of law that a strict interpretation of the statute must be adopted and the legislative intent which is abundantly clear from the recitals of section 17 and section 19 of FEMA must be adopted. Reliance is placed in this respect on Polestar Electronic (P) Ltd. Vs. Addl. Commissioner, Sales Tax 1978 SCR (3) 98. 10. The position as regards the application of FEMA for a contravention in the FERA issue in hand has been settled in the case of Tirumalai Chemicals Ltd. Vs. Union of India (AIR 2011 SC 1725):- 28. Above discussion will clearly demonstrate that Section 49 of FEMA does not seek to withdraw or tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary implication takes away such right or remedy in respect thereof. This position has been made clear by Clauses (b) and (c ) of the proviso to Section 4 of the Central Act XXX of 1965 which substantially correspond to Clauses (c ) and (e ) of Section 6 of the General Clauses Act, 1867. This position has also been settled by the decisions of the Privy Council and this Court (vide the Colonial Sugar Refining Company Ltd. v. Irving 1905 AC 369 and Garikapatti Veeraya v. N. Subbiah Choudhury) 1957 SCR 488 but the forum where such appeal can be lodged is indubitably a procedural matter and, therefore, the appeal, to right to which has arisen under a repealed the Act, will have to be lodged in a forum provided for by the repealing Act. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. v. Union of India Ors. 2006 (5) BOM CR 12, the appeal shall lie before the Special Director (Appeals) in case of a FERA contravention. The relevant paragraph is reproduced below:- From the aforesaid analysis of the provision contained in FEMA, we have no hesitation in holding that the appeals against the adjudication orders passed by the Assistant Director/Deputy Director (Appeals) and appeals against the orders of all other Adjudicating Authorities are maintainable before the Appellate Tribunal constituted under FEMA. 14. It is evident from the Judgement Chitturi Subbanna vs. Kudapa Subbanna Others 1965 AIR 1325, 1965 SCR (2) 661, that a pure question of law can be raised at any point of the proceedings. Thus the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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