9911796707
TMI Blog2024 (9) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed either a fixed amount of penalty or minimum amount of penalty. It therefore, follows that the amount of the penalty which is to be imposed by the Adjudicating Authority is a matter of discretion which, of course, is necessarily required to be exercised judiciously after taking into account the facts of the case and the evidence placed before him. As per the admitted fact, export proceeds are already realized by the respondent, though with delay of two years eight months and three years two months, from the date of exports. The fact that export proceeds are already realized, we agree with the view of Ld. Adjudicating Authority that this case pertains to only technical contravention, on account of delay in realizing the export proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wala, FCA Ms. Amita N. Jivrajani, ACA ORDER Dictated by Rajesh Malhotra : Present appeal u/s 19(1) of the Foreign Exchange Management Act, 1999 and Sub-Rule 1 of Rule 10 of Foreign Exchange Management (Adjudicating Proceedings and Appeal) Rules, 2000 is filed by the appellant, Union of India against the impugned order dated 18.03.2021 passed by the Adjudicating Authority, vide which penalty of Rs. 2 lakh each was imposed on respondent no. 1 2 respectively for contravention of section 7(3) of the Foreign Exchange Management Act, 1999, r.w. Regulation 9 of Foreign Exchange Management (Export of Goods and Services) Regulation, 2000, for delay in realization of the export proceeds to the extent of US$ 9,93,652 (equivalent to INR 6,08,85,128/-). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et in India. He submitted that Ld. Adjudicating Authority failed to appreciate the language and significance of section 13(1) of the FEMA, which narrates the contravention and penalties, that if any person contravenes any provision of FEMA or contravenes any rules, regulation, notification, direction or order issued in exercise of the powers under the Act, or contravenes any condition subject to which an authorization is issued by the RBI, he shall, upon adjudication, be liable to a penalty upto thrice of the sum involved in such contravention, where such amount is quantifiable, or upto 2 lakhs where the amount is not quantifiable, and where such contravention is a continuing one, further penalty which may extend upto five thousand rupees e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as admittedly, the export proceeds are already realized. Prayer is accordingly made to dismiss the present appeal being devoid of any merits. 5. After hearing the rival submissions, we have given our thoughtful consideration to the same. The grounds taken in the appeal for enhancement of penalty is to state that the penalty imposed by the Adjudicating Authority is abysmally low. The appellant has stated that the Adjudicating Authority has ignored the provisions of Section 13(1) of FEMA which provides for imposition of penalty up to thrice the sum involved in the contraventions. Section 13(1) of FEMA, 1999 states:- If any person contravenes any provision of this Act, or contravenes any rule, regulation, notification, direction or order issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any discretion in this regard . The stand of the State in the case supra conceded that the assessing authorities are not bound to levy fixed penalty equal to ten times the amount of entry tax. In fact, in the present case the statute (FEMA) itself provides for a penalty up to thrice the sum involved in such contravention, where contravention is quantifiable and upto only Rs. Two lakh, where contravention is not quantifiable, and thereby, gives explicit scope to the Adjudicating Authority to exercise his discretion, albeit judiciously, for imposition of penalty. In the present case, the Adjudicating Authority has made a finding in the impugned Adjudication Order that the contraventions are technical in nature and keeping in view the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, or where the breach flows from a bona-fide belief that the offender is not liable to act in the manner prescribed by the statute. The reading of the Adjudication Order reflects judiciousness on the part of the Adjudicating Authority, in not having imposed penalty which is commensurate with the amount of foreign remittance against exports, particularly so when the contraventions were technical in nature as the substantive provisions of the Regulations have been complied with, even though with some delay. The Adjudicating Authority has imposed separate penalty of Rs. Two Lakh each on both the Noticee(s) on account of delay for the compliances/remittances against exports. In the given circumstances, where the contraventions are not of subs ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
