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TMI Blog2024 (9) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court, we are considering the issue whether there was negligence on the part of the appellant. We find that the appellants were negligent in making non-convertible amount to be convertible. It cannot occur due to inadvertent error because the non-convertible amount was transferred out of India not on one occasion but on many occasions. Thus, negligence on the part of the appellants gets well proved on the facts of the case. Appellants submitted that there is no loss of foreign currency as it was brought back to India. It has already been clarified that contravention of the provisions of the Act of 1973 would not get nullified if the currency was subsequently brought back to India. In fact, if the negligence of the appellants is ignored, then it would be nothing but to endorse their action in contravention of the provisions of the Act of 1973. If such arrangements are permitted and ignored, it may have serious consequence. Only for the reason that the money was alleged to have been brought back, no penalty could have been imposed, we do not find aforesaid ground to be tenable. Whether respondent/Adjudicating Authority is justified in imposing the penalty of Rs.65 lakhs on the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority though bringing the currency back to India does not absolve the appellant for contravention of the provisions of the Act of 1973. Thus, while we find contravention of the provisions of the Act of 1973, the penalty imposed for different contravention is disproportionate. We find reasons to cause interference in the quantum of penalty which is reduced from Rs.65 lakhs to Rs.30 lakhs on the appellant bank and Rs.10 lakhs to Rs.3 lakhs on the individual appellant. The amount of pre-deposit has been satisfied by depositing 50% of the amount by appellant Standard Chartered Bank and 30% each by its officers/other appellants. Therefore, the appellants have already satisfied the equivalent amount or even deposited higher amount pursuant to the order for pre-deposit. Since the amount has been satisfied by the appellants, no other amount would be recoverable, rather if any amount received by the respondent is in excess to the penalty imposed by this Tribunal, it would be refundable. - JUSTICE MUNISHWAR NATH BHANDARI : CHAIRMAN And SHRI RAJESH MALHOTRA : MEMBER For the Appellant : Mr. Ajay Monga, Mr. AteevMathur, Mr. Anmol Mehta, Advs For the Respondent : Mr. Pankaj Pandey, Adv ORD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est be referred to be a negligence,thus could not have resulted in huge penalty. It is more so when the non-convertible funds amounting to Rs.1.15 crores were brought back and in any case, it could not have been alleged to be a case of consent or connivance of the appellants, rather as stated, it can bea case of negligence. 8. The counsel for the appellants made a reference to the Writ Petition No. 3881/95 filed before the High Court to challenge the Show Cause Notice. The said Writ Petition was finally decided by the Division Bench of the High Court by its order dated 21.01.2010. It is with the finding that no proceedings have taken place in the last 15 years and in view of the reversal transactions, it is a fit case to be examined by the ED whether to pursue the matter further and even if they do so, it will be confined to the negligence. The said order of the High Court was not challenged by the ED. 9. Ignoring the judgment of the High Court, the impugned order was passed by the Adjudicating Authority. In any case, the appellant bank has deposited 50% of the penalty and 30% by its officers pursuant to the order of this Tribunal on the application for waiver of pre-deposit. 10. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond the direction of the High Court. Thus, for that reason also, the impugned order deserves to be set aside. It is more so when the issue of mens rea could not have been taken by the Adjudicating Authority becauseof the direction of the High Court to decide the issue in reference to negligence, if ED to pursue the case. On the grounds aforesaid, the impugned order deserves to be set aside. 11. A contest to the appeal has been made by the counsel for the respondent. The arguments raised by the counsel for the respondent would be referred while recording the finding in reference to the grounds taken by the appellant. 12. The fact in issue and even admitted by the appellant is that the bank had received non-convertible amount in the bank account of Dr. Ramaakrishnan. It was transferred in the accounts of Dr.Ramakrishnan out of the country though it was not convertible so as to be transferred to make it convertible currency. 13. The appellant bank hastried to justify the act of its officers. It was stated that an inadvertent mistake was committed in transferring non-convertible amount to various bank accounts of Dr. Ramaakrishnan out of the India but the entire currency was brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even on the second ground. 17. The issue now remains as to whether respondent/Adjudicating Authority is justified in imposing the penalty of Rs.65 lakhs on the appellant bank and Rs. 10 lakhs each on its officers. To answer the issue, we have gone through the record and also the judgment of the Delhi High Court. The Delhi High Court has restricted the case in reference to allegation of negligence and not for any other issue. The Adjudicating Authority ought to have decided the Show Cause Notice in reference to the aforesaid. However, we find that the learned Adjudicating Authority has taken into consideration each aspect of the matter raised before it and thereupon passed a detailed speaking order. In doing so, it did not become judge of its own cause, rather order was passed based on material and otherwise the appellants themselves have admitted their error in transferring of non-convertible funds making it convertible. The Adjudicating Authority has meticulously considered each aspect of the matter and finding contravention of the provisions of the Act of 1973, appropriate penalty was imposed but has been questioned. 18. It is emphatically argued that without there being any repr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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