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TMI Blog2018 (12) TMI 2001X X X X Extracts X X X X X X X X Extracts X X X X ..... can be so interpreted to make the other part redundant. The appellant s plea of setting aside the seizure would tantamount to that. Whether Section 37-A will have retrospective effect or not ? - As there are decisions of the Supreme Court and other courts on the issue whether a law can have retrospective effect. In Vatika Township (P) Ltd. [ 2014 (9) TMI 576 - SUPREME COURT] held Law passed today cannot apply to the events of the past. Retrospective operation should not be given to a statute so as to take away or impair an existing right or create any obligation or impose a new liability. While seizure is a measure which is taken as an immediate action it does not bestow the power of appropriation until and unless it is confiscated. The law, before Section 37-A came into being did not give any right to the parties to get their property seized and thereafter agitate as provided under Section 37-A(3) and Section 37-A (4) before the concerned authorities but was more draconian in the sense that they were straightaway confiscated. Section 37-A has in fact enlarged the rights of the parties with regard to the properties etc. which has supposedly contravened the provisions of law, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiring a property at Singapore in the name of M/s. Amarange Inc. BVI whose Directors were both Shri Rahul Arunprasad Patel and Shri Dineshchandra Patel who were the Directors of the Indian company M/s. Sintex Industries Ltd. also. M/s. Sintex Holdings, Netherland had initiated to sale of M/s. Amarange Inc. They were therefore charged for contravening the provisions of Section 4 of FEMA and action under Section 37-A was initiated which culminated in the impugned order. Both the parties were heard at length. 3. The appellants during the hearing stated the following: a. That they were not arguing the case on merits but were limiting themselves to only legal arguments. b. That Section 37-A was a special provision which was introduced by the Finance Act, 2015. c. That Section 37-A (1) brings out that the Section is activated upon receipt of any information or otherwise . It is an accepted fact that the whole case has originated based on an information as is brought out in the seizure order dated 15.12.2017; that they are covered by RBI Regulations and have to mandatorily report to them whenever any investment or remittance is made/received from abroad. d. That the provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Gokak Patel Volkart Limited vs. Dundayya Gurushiddaiah Hiremath dated 14.02.1991 wherein it was stated the question whether a particular offence is a continuing offence or not must therefore necessarily depend upon the language of the statute which creates that offence, the nature of offence and the purpose intended to be achieved by constituting the particular Act. Applying the law enunciated above to the provisions of Section 630 of the Companies Act, we are of the view that the offence under this section is not such as can be said to have consummated once for all. Wrongful withholding, or wrongfully obtaining possession and wrongful application of the company's property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the Companies Act, cannot be said to be terminated by a single act or fact but would subsist for the period until the property in the offender's possession is delivered up or refunded. It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged. The offence consists of a course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and passes appropriate directions with regard to the seizure. In case, the seized goods are not available or the seizure is quashed, as submitted by the appellant, the provision of Section 37-A (4) will become redundant. The Supreme Court in the case of Union of India Ors. Vs. Filip Tiago De Gama of Vedem, Vasco De Gama (AIR 1990 SC 981) has laid down the principle that the court cannot read anything into the statutory provision which is plain and unambiguous. The court has to find out legislative intent only from the language employed in the statutes. Surmises and conjectures cannot be for interpretation of the statutes. There is a provision in Section 37-A (5) which states any person aggrieved by any order passed by the Competent Authority may prefer an appeal to the Appellate Tribunal. The powers of the Appellate Tribunal are stipulated in Section 19(3) of FEMA, 1999 which states .. the Appellate Tribunal may after giving the parties to the appeal an opportunity of being heard pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. 7. The powers of the Appellate Tribunal are general in nature and does not have any specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute may be held to be retrospective in nature. 35. We would also like to reproduce hereunder the following observations made by this Court in Govind Das v. ITO. 11. Now it is a well-settled rule of interpretation hallowed by time and sanctified by judicial decisions that, unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure......................all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation. From the above decision of the Supreme Court, the following can be concluded: a. Law passed today cannot apply to the events of the past. b. The principle of fairness which must be the basis of every legal rules stipulates that legislation should not modify accrued rights or impose obligations or impose new duties or att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the introduction of Section 37-A and there is no dispute on that. Section 37-A has therefore given more rights to the parties and more channels for them to agitate their case. It has mellowed down the impact of Section 13(2), as presently, there would be a separate procedure involving two different stages of adjudication as stipulated under Section 37-A (3) and 37-A (4). The provisions are beneficial to the parties and has extended their rights further than that was provided in law earlier. 9. The decision of this Tribunal dated 13.04.2018 in the case of Shri Ashwini Kumar Ors. is not relevant as the issue as discussed above has neither been discussed nor dealt with at all. Even on retrospectivity except for quoting the Supreme Court s judgement it has not gone into any details as to how it is relevant in the present case. In Supreme Court in Bharat Petroleum Corporation Ltd. Anr. vs. N.R. Vairamani Anr., AIR 2004 SC 778 had observed:- Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid s theorems nor as pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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