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TMI Blog2019 (6) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... e export of goods had been made on 29h May, 2000 under GR No. 366158. The subject export was governed by the Foreign Exchange Regulation Act, 1973 and no proceedings under section 8 of the FEMA 1999 which came into force on 1st June 2000 could be applicable for the GR No. 366158 dated 29.05.2000. In BHUPENDRA V. SHAH VERSUS UNION OF INDIA ORS. [ 2010 (3) TMI 20 - DELHI HIGH COURT] held show cause notice (SCN) issued after the sunset clause period of 31-05-2002 for alleged contravention of Section 7 8 of FEMA by an exporter in not realizing proceeds of export made in 1997- 98(pertaining to the FERA period. In order to invoke section 7 of FEMA, the ED will have to show that the party reached the time limits specified in FEM EGS Regulations. At the relevant point of time, FEMA was not a force and hence there could be no question of contravening the provisions of FEMA and if at all there was any contravention, it would only under FERA and the same had to be shown to have continued beyond the two year sunset period - the legislative intent was very clear in having a limited continuation of two years for contraventions under FERA - on reading of Section 49(4) [which is subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while export was made on 29.05.2000 i.e. 1-2 days before the new Act came into operation. The violation by the appellant came to light on 23.06.2010 when XOS statement for non-realization/short of foreign exchange received and accordingly show cause was received. The plea taken u/s 49(3) by appellant in additional grounds and submission is not applicable as violation came was found in 2010 only. NO sufficient reasons were advanced by the appellant for non-relisation of US$6558.64 as export proceeds. I agree with the findings of the Adjudicating Officer and confirm the penalty of ₹ 3,87,368/- on each of its Directors, Alok Prakash and Pankaj Poddar for contravention of provisions of section 7 8 of FEMA, 1999 read with regulation Nos. 8,9 13 of Foreign Exchange Management (Export o Goods and Services) Regulations, 2002. Hence, Penalty imposed on the company is confirmed. 3. The facts are already recorded by the Adjudicating Authority, the same are read as under: i. The XOS forwarded by the Assistant Commissioner of Customs (Tech), CC(P), West Bengal, Kolkata revealed that certain export proceeds are pending realization by M/s. Jiwanram Sheo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2000 (Bill No. 21 PSFBCU-14521700 dated 05.7.2000) and failed to realize export proceeds of US$ 6558.64 equivalent to ₹ 3,87,368.00. vi. S/Shri Alok Prakash and Pankaj Poddar, Directors of the company M/s. Jiwanram Sheoduttrai Industries Pvt. Ltd. were responsible for the realization of the export proceeds. They have failed to take reasonable steps to realize the export proceeds. vii. Based on the above complaint dated 10.7.12 and documents relied therein, Show Cause Notice No. T- 4/01/Kol/SCN/FEMA/2012/AD/Adj/4866-4868 dated 11.7.12 was issued to the said M/s. Jiwanram Sheoduttrai Industries Pvt. Ltd. and its two Directors viz. S/Shri Alok Prakash and Pankaj Poddar of the addresses at Block-D, Chowringhee Mansion, 30, Jawaharlal Nehru Road, Kolkata 700016 and 109/8A, Hazra Road, Kolkata 700026 and 251A/22, Netaji Subhas Ch. Bose Road, Kolkata 700047 respectively, directing them to show cause in writing within 30 days from the date of receipt of the notice as to why adjudication proceedings as contemplated under the provisions of Section 13 of the Foreign Exchange Management Act, 1999 should not be held against them for contravention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be treated as trade discount. The noticee company also requested their banker to accept the FIRC and release the pending GR. 4.3 The noticee company informed their banker vide letter dated 12.2.2003 about proposed settlement of export bill along with submission of FIRC for US$ 22,541.36 which is the subject matter of the present show cause notice in question their banker neither rejected out claim nor advised them any further course of action relating to the matter and as a result they had shown the relevant export bill as part outstanding in their Books of A/cs. Moreover, the noticee company s employee who was acquainted with the matter and dealt the matter with our banker had left the company and since then the matter remained pending with our banker through whom the export documents were negotiated. 4.4 The Noticee Company has submitted application dated 12.02.2003 before their negotiating Banker i.e. 8(eight) years before initiation of enquiries by the Department, requesting for acceptance of the claim of the buyer and release of the concerned GR. 4.5 RBI has delegated some of their powers to the authorized dealers dealing in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Authorised dealer of JSIPL with a request to the then Manager of the Bank to treat the difference (shot remittance) of US $ 8421.04 as trade discount. 7. It is the case of the appellants that the then manager in its own wisdom neither informed the company nor closed the export outstanding in its books and consequent to that the impugned notice has been received by the company. JSIPL was not aware of the unilateral action of the bank and was not aware of the fact that the bank have chosen to show that export bill as outstanding whereas in fact the matter had been settled between the buyer and the Company. Furthermore, in any business leave apart export business there are numerous occasion where there is difference of opinion about the price, quality of goods, delay in delivery of goods and other multifarious reasons where the buyer and seller amongst themselves has to settle on the price front due to their mutual commercial interest. 8. The mast Circular on export of Goods and service (RBI/2015-16/83 Master Circular No. 14/2015-16 July 01,2015 (Updated as on November 5, 2015) Para C.15 Part 3 reproduced hereunder; C.15 Reduction in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis in subsequent financial years in the following table: Financial year Export of goods (Amount in Rs.) 2000-2001 18,69,13,348 2001-2002 20,98,76,543 2003-2004 23,81,91,538 2004-2005 28,68,68,248 2005-2006 40,03,65,807 2006-2007 50,94,38,092 2007-2008 69,24,53,370 2008-2009 81,45,28,007 2009-2010 54,57,60,127 2010-2011 82,10,38,168 2011-2012 98,66,55,884 2012-2013 113,93,66,6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognizance of any offence under the repealed Act and no adjudicating officer shall take notice of any contravention under section 51 of the repealed Act after the expiry of a period of two years from the date of the commencement of this Act. iv) Subject to the provisions of subsection (3) all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as it that Act had not been repealed. v) Notwithstanding such repeal:- a. Anything done or any action taken or purported ot have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any license, permission, authorization or exemption grated or any document or instrument executed or any direction given under the Act hereby repealed shall, in so far as it is not in consistent 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 appellant board under subsection (2) of section 52 of the repealed Act but no disposed of before the commencem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or contraventions under FERA. Furthermore it was held on reading of Section 49(4) [which is subject of section 49 (3)] the contravention under FERA had to be governed by the Provisions of FERA. Therefore the alleged contravention was one under FERA and by virtue of the sunset clause so there was no question of the contravention continuing after 31-5-2000. 20. The Hon ble Karnataka High Court in an unreported decisions of Atul Lall vs. Union of India (W.P. no. 16620/2010) has approved the reasoning and quashed as SCN issued under similar circumstances. In the case of Ghanshuam Das Moolrajani vs. Enforcement Directorate and Ors . on 10 April, 2007 dealt by Rajasthan High Court (RLW 2007(4) Raj 2973, 2008 81 SCL 260 Raj) the question of jurisdiction to issue the impugned notice under the provisions of FERA, in view of what has been provided for in section 8 of FEMA was discussed. The High court observed that provisions relating to repeal and saving in Section 49 of the FEMA has to be understood in the right perspective. Subsection (3) of section 49 provides that notwithstanding anything contained in any other law for the time being in force, no court shall take cogniza ..... 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