9911796707
TMI Blog2008 (9) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,00,000(Rupees ten lakhs only) against the appellant, Shri. Anil Bhalla for contravention of the provisions of Section 18(2) 18(3) of FEMA, 1973 read with Section 68(1) of FERA 1973 for not taking reasonable efforts to realize outstanding export proceeds to the tune of Rs. 2,36,35, 851 against 9 GRs where exports were made by the co-noticee company M/s. Bombay Handloom (P) Ltd. in the year 1997 and the appellant was held guilty being the director of the company alongwith the co-noticee company. Written submissions were filed by the appellant which are taken on record. Full dispensation was granted in favour of the appellant by this Tribunal vide its order dt. 15.10.04 where presently this appeal is taken up for disposal on merits. 3. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer shall take cognizance or notice of contravention after 2 years from the date of commencement of the Foreign Exchange Management Act. In other words, the cognizance under the repealed Act or notice by an adjudicating officer of any contravention shall not be taken under section 51 of the repealed Act after expiry of a period of two years from the date of the commencement of FEM Act. The Foreign Exchange Management Act, 1999 came into force w.e.f. 1.6.2000 by Notification of the Government of India which prescribed the said date of 1.6.2000 for the coming into force of the provisions of Foreign Exchange Management Act, 1999. Therefore, in terms of section 49(3) of FEM Act the Adjudicating Officer could take notice of any contravent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material place before it. the court decides to proceed against the offenders against whom a prima facie case is made out. In the facts and circumstances of this case, the High Court erred in holding that the Magistrate had not taken cognizance, and that being condition precedent, issuance of process was illegal. 7. It has recently been observed by Hon'ble Supreme Court in S.K. Sinha v. Videocon International Ltd. MANU/SC/7011/2008 that taking cognizance of offence was entirely different from initiating proceedings and SCN in this case was issued within sunset period. The Court obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason which is liable to be rejected for want of sufficient evidence. 9. It is alleged that the signatures were obtained on declaration of subject exports fraudulently by Shri. Ranjit Kumar and others taking undue advantage of his mental problems. But the burden of proving the fact that fraud was played on him was on the appellant himself which he has utterly failed to discharge. There is bald assertion not supported by sufficient documentary evidence which speak volumes against the appellant. It is not the case of the appellant that any criminal complaint was filed by the appellant against Ranjeet Kumar and others for the said act of fraud. 10. It is found from record that the appellant was not only the Director of the company during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , under clause (a) of sub-section (1)... 12. Under section 18(3) of the FER Act a presumption arises where the exporter does not receive the payment for exports within the prescribed period where it shall be presumed that contravention of the provisions of sub-section (3) has taken place unless it is proved by the appellant that he has taken all reasonable steps to recover the payments of the exports. Rule 8 of Foreign Exchange Regulation Rules, 1974 provides that the amount representing the full export value of goods exported shall be realized and be paid to the authorized dealer, on the due date for payment or within six months from the date of shipment of goods whichever is earlier. However, the presumption under Section 18 (3) is rebutt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to day business of the company hence he was not responsible for subject transaction. The argument is misleading and wrong because the directors as a board are exclusively empowered to manage and are exclusively responsible for that management. A company though a legal entity, cannot act by itself but can only act through its directors. There is nothing on record to show that any restriction was placed on the powers of the appellants as directors of the company with reference to subject transaction. The ruling of Supreme Court in N. Rangachary v. Bharat Sanchar Nigam Ltd. JT 2007 (6) SC 292 is worth quoting here : Therefore, a person in the commercial world having a transaction with a company is entitled to presume that the directors of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
