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TMI Blog2009 (1) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... n compliance of the Order dated 10.1.2003 of this Tribunal where presently these appeals are taken for the final disposal on merits. The appeals have arisen from common order, hence are heard and disposed off together. 3. I have heard elaborate arguments from Shri Rajesh Kumar, Advocate on behalf of Appellants and Shri A.C. Singh, DLA for the Respondent and gone through the record, relevant law and judicial pronouncements carefully. The appellants Mr. Karimabai and Hazi Ahmed Hazi Hasan Haji Ahmed have been charged for the contravention of sections 8(1) and 73(3) of FERA, 1973 along with the relevant Notification and also for the contravention of section 9(1)(a) section 68(1) and 68(2) of FERA, 1973 alleging that during the year 1999-2000, Hazi Ahemad Hazi Hasan Juneja had acquired UAE Dha. 1,22,90/- as freight charges of the vessel Safina Al-Haji Ali and failed to offer or cause to be offered it for sale to an authorised dealer and further for purchasing an old Engine for UAE Dhs. 10,000/- and transferring the said amount to M/s. Al Mymoon Ship Boat Services, Dubai for the purchase of the said engine. His sister-in-law, Smt. Karimabai, the owner of the said vessel, was also charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sinterpreted. There was no menserea in terms of section 59 of the FERA and both the appellants were not aware of the fact that they were required to have permission of the RBI for the purchase of Engine for Vessel. The charges are denied and it is argued that the impugned order is liable to be set aside. 6. Firstly, I may take up the vehemently made argument with regard to residential status of the appellant Karimbai. However, the contention about the non residential status of the appellant Karimbai during the relevant period, is not acceptable. Worthy it is to note at this juncture that a person, being a citizen of India, is capable of being construed to be a person resident outside India under certain contexts and situations, as contemplated under section 2(p)(i) of FERA, which reads as under:- Section 2. Definitions: In this Act, unless the context otherwise requires,-- Section 2(p) person resident in India means - (i) a citizen of India, who has, at any time after the 25th day of March, 1947, been staying in India but does not include a citizen of India who has gone out of, or stays outside, India, in either case- (a) for or on taking up employment outside India, or (b) for car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e argument that the statement of Shri Hazi Ahemad has been misinterpreted and not followed in the actual spirit. It is established from evidence on record that the appellant Hazi Ahmed Hazi Hasan acquired the foreign exchange to UAE Dhs. 1,22,900 as stated in charge towards freight charges of the vessel in question and payment of UAE Dhs. 30,000/- for purchasing vessel which was made by him on behalf of his sister-in-law, Smt. Karimabai the actual owner of the vessel. 10. It is argued that the appellants were not aware of the legal position that they were required to take permission of RBI in respect of the impugned transactions. However, the plea of the appellant about his ignorance of law can be of no avail to them in view of a maxim 'Ignorantia juris non excusat, lgnorantia facti doth excuse', which means that ignorance of fact may be excused but ignorance of law is not excusable, which has the force of law in India. 11. It is argued that the admissional statement of OS Mamad Juncja the Tindel of said vessel, was recorded under section 107 of Customs Act was not acceptable under the proceedings conducted under section 50, 51 of the PER Act 1973. However, the argument tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rman, SEBI v. Shriram Mutual Fund Anr. J.T. 2006 (11) SC 164 can be quoted as below: In our considered opinion, penalty is attracted as soon as the contravention of the statutory obligation as contemplated by the Act and the Regulation is established and hence the intention of the parties committing such violation becomes wholly irrelevant. A breach of civil obligation which attracts penalty in the nature of fine under the provisions of the Act and the Regulations would immediately attract the levy of penalty irrespective of the fact whether contravention must be made by the defaulter with guilty intention or not. We also further held that unless the language of the statute indicates the need to establish the presence of mens rea, it is wholly unnecessary to ascertain whether such a violation was intentional or not. On a careful perusal of section 15(D)(b) and section 15-E of the Act there is nothing which requires that mens rea must be proved before penalty can be imposed under these provisions. Hence once the contravention is established then the penalty is to follow. 14. Therefore, naming the contravention as technical is a misnomer and the appellants cannot be absolved from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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