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TMI Blog2004 (1) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... lant has been that she received a sum of Rs. 80,000 in India through a person otherwise than an authorized dealer at the instance of her husband who was at the relevant time working in Saudi Arabia without the requisite permission from the authorities and this amounted to contravention of section 9(1)(b) of Foreign Exchange Regulation Act, 1973. In a statement dated 11-7-1988 the appellant honestly stated the facts and admitted the alleged receipt. However, she narrated the circumstances and the urgency in which it was done and submitted that there was no intention to commit any contravention. It was out of sheer misunderstanding and unawareness of the legal provisions. She pleaded for leniency and sympathetic consideration. The appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hindustan Steel Ltd. v. Commissioner of Sales Tax she pleaded that penalty is not to be imposed in each and every case and if it is shown that the breach was technical it may not be necessary to impose any penalty at all. She further stated that fixing the quantum of punishment is also judicial order and ought to have been done after applying judicial mind in the facts and circumstances of the case. 6. In view of the clear admission made by the appellant as to the receipt of the alleged amount through unauthorized channel, Shri Gadoo appearing on behalf of the respondent submitted that he has nothing to submit in the matter as the case is crystal clear. He does not even have any objection to any reduction to the amount of penalty, thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to imposing penalty, when there is a technical or venial breach of the provisions of the Act 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." 8. Let us examine the facts of the present case in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration. 9. In view of the aforesaid observation of the learned Adjudicating Officer though offence appears to be of a deliberate nature does not appear to be correct for neither the appellant had any intention to commit the contravention nor she was aware of the contravention being committed on account of her ignorance of the law. Besides the fact that the money was sent by her husband pursuant to her call for urgent help by itself, cannot attribute any intention on her part to commit the contravention, especially in the absence of any evidence to the contrary. There is nothing to indicate that she ever suggested her husband to send money through illegal channels. It cannot, therefore, be said that the appellant either acted delibe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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