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TMI Blog2023 (7) TMI 1474X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty which can be imposed under the Section is three times the amount of contravention involved. From the language of the Section it is clear that the Section has not prescribed either a fixed amount of penalty or minimum amount of penalty. It therefore, follows that the amount of the penalty which is to be imposed by the Adjudicating Authority is a matter of discretion which, of course, is necessarily required to be exercised judiciously after taking into account the facts of the case and the evidence placed before him. The stand of the State in in State of M.P. v. Bharat Heavy Electricals [ 1997 (8) TMI 252 - SUPREME COUR ] conceded that the assessing authorities are not bound to levy fixed penalty equal to ten times the amount of entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 filed by Union of India against the Adjudication Order No. JD/AG/02/HYZO/2020 from File No. T-4/04/HYZO/2019(JD-AG) dated 31-7-2020 passed by the Joint Director, Hyderabad Zonal Office, Enforcement Directorate, Hyderabad. The appeal is for enhancement of penalty of Rs. 2,00,000/-(Rupees Two Lakhs only) imposed by the Adjudicating Authority on the respondent M/s. OSR Infra Private Limited, RR District (Respondent 1) and for enhancement of penalty of Rs. 1,00,000/- (Rupees One Lakh Only) on the respondent Shri Vamsidhar Maddipatala, Director, M/s. OSR. Infra Private Limited (Respondent 2). The penalty of Rs. 2,00,000/- which has been imposed on Respondent 1, for contravention of section 6(3)(b) of FEMA 1999 r/w provisions of the Foreign Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed is low and should have correlation with the quantum of contravention. Learned counsel for the respondent contended that the contraventions are technical in nature. In any case, the compliances to the provisions of the Regulations were made, though with some delay, which could not be avoided due to the unavoidable circumstances. She further argued that the Adjudicating Authority has examined each of the contravention, the compliances made thereof and has exercised his discretion judiciously while imposing the penalty. The respondent in their reply to the appeal have stated the unavoidable circumstances as operational reasons and shortage of staff. The respondents have clarified that on one occasion the authorized signatory was abroad. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing failed to file FC-GPR within 30 days of share issuance as they filed the same with delay of 2 days. The occurrence of these contraventions is not disputed by the respondents. 6. The Adjudicating Authority has upheld the charges against the respondents, however, he has recorded that he has taken a lenient view for imposition of penalty. The moot question here is whether the Adjudicating Authority was judicious in taking the lenient view for the imposition of penalty. It is obvious from the facts of the case that the Respondents have complied with the provisions of the Regulations, albeit with delay. The Regulations have stipulated certain provisions which are to be complied with for category of cases specified therein, for the in-flow of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dherence to the prescribed time limits to meet the compliance to the substantive provisions of the said Regulations. 8. The grounds taken in the appeal for enhancement of penalty is to state that the penalty imposed by the Adjudicating Authority is abysmally low. The appellant has stated that the Adjudicating Authority has ignored the provisions of section 13(1) of FEMA which provides for imposition of penalty up to thrice the sum involved in the contraventions. Section 13(1) of FEMA, 1999 states:- If any person contravenes any provision of this Act, or contravenes any rule, regulation, notification, direction or order issued in exercise of the powers under this Act, or contravenes any condition subject to which an authorisation is issued b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing authorities are not bound to levy fixed penalty equal to ten times the amount of entry tax. In fact, in the present case the statute (FEMA) itself provides for a penalty up to thrice the sum involved in such contravention and thereby gives explicit scope to the Adjudicating Authority to exercise his discretion, albeit judiciously, for imposition of penalty. The Adjudicating Authority has made a finding in the impugned Adjudication Order that the contraventions are technical in nature and keeping in view the nature of contraventions he has taken the lenient view in imposition of penalties. 11. The learned counsel for the respondents has cited the Hon'ble Supreme Court in the judgment dated 4-8-1969 in Civil Appeals No. 883 to 892 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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