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TMI Blog2023 (5) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty 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 appellant has failed to place any reason in the pleadings as to show that the discretion has not been exercised judiciously by the Adjudicating Authority. The question as to when a penalty is to be regarded as either low or high is at best answered subjectively. In this case Adjudicating Authority has complied with the provisions of the Section by imposing penalty for contravention of section 10(6) FEMA r/w Regulation 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . FPA-FE-26/CHN/2020 filed by Union of India against the Adjudication Order No. T-4/SRO/ADE/CEZO-I/01/2019 dated 24-1-2020 passed by the Additional Director, Southern Regional Office, Enforcement Directorate, Chennai. The appeal is for enhancement of penalty of Rs. 21,00,00,000/- (Rupees Twenty One Crore only) imposed by the Adjudicating Authority on the respondent Shri Kaluram B. Proprietor of M/s. Spring Infotech for contravention of provisions of FEMA 1999 and Regulation thereunder involving amount of Rs. 20,62,94,201/- (Rupees Twenty Crore Sixty Two Lakh Ninety Four Thousand Two Hundred and One only). Penalty of Rs. 21,00,00,000/- comprises of Rs. 10,50,00,000 (Rupees Ten Crore and Fifty Lakhs only) for the contravention of the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent. The respondent has also failed to appear before the Tribunal. I am left with no option but to decide the case ex-parte on the basis of the available records. 4. On perusal of the Adjudication Order, it is seen that notice has been taken by the Adjudicating Authority about the non-participation of the Respondent during the investigation and the Adjudication Proceedings. It appears that the respondent had opened an account with M/s. IndusInd Bank, Nungambakkam, Chennai. He successfully made outward remittances in 39 tranches totaling Rs. 20,62,94,201/- abroad in the guise of advance for imports. It was found that RTGS deposits were made in the said account which were immediately followed by 39 tranches of outward remittances to vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions 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 by the Reserve Bank, he shall, upon adjudication, be liable to a penalty up to thrice the sum involved in such contravention where such amount is quantifiable, or up to two lakh rupees where the amount is not quantifiable, and where such contravention is a continuing one, further penalty which may extend to five thousand rupees for every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (6) FEMA r/w Regulation 6(1) of Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulations 2000 and as well as imposing penalty for contravention of section 3(b) of FEMA. For contravention of each of these Sections he has chosen to impose penalty slightly over fifty percent thus totaling a penalty of over hundred percent. Any insistence to impose higher penalty for contraventions of each of the Section arising from the same set of transactions may introduce element of subjectivity. In any case, there is no such requirement under the statute as long as each contravention has been examined and if found established has attracted penalty. The reading of the Adjudication Order, therefore, reflects objec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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