TMI Blog2024 (12) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... l Notice-cum-Invoices clearly reflects the name of consignee as ANZ Grindlays Bank Ltd. and also notified to importer M/s Wipro Ltd. Therefore, it points towards a direction that said bank was duly intimated regarding the import of consignments, qua three remittances. The lapse on the part of the said bank (if any) for not intimating the RBI is no ground to presume the contravention on the part of the Appellant Company, simply because the Appellant Company was unable to trace out the remaining import documents of the 2 remittances for USD 30000 and USD 8550 (total USD 38550), as the matter pertains 13-14 years prior to the passing of the impugned order. Appellant M/s Wipro Ltd. cannot be penalized for the negligence on the part of the erstwhile ANZ Grindlays Bank for not sending the intimation to RBI regarding the import of goods, or, alternatively, lapse on the part of the RBI for not noting the information received from the concerned bank and for not properly maintaining its records, seeing the fact that out of 35 instances complained by RBI, the Appellant Company is able to prove the import of goods with respect to 30 instances during the investigation of the case. Just because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,52,000/- 11. 27.2.01 US $ 231625 Rs.99,59,875/- 12. 02.03.91 US $13858.65 Rs.5,92,922/- 13. 05.03.01 US $29520.72 Rs.12,67,477/- 14. 07.03.01 US $37229 Rs.12,69,477/- Total Rs.2,38,27,039/- (b) Details of remittance of foreign exchange effected through State Bank of India Peenya Industrial Estate, Bangalore. Sl. No. Date of remittance Sum remitted in foreign currency Equivalent to Indian Currency 1. 20.11.00 JYP 606000 Rs.2,62,034/- 2. 20.12.00 GBP 20024.33 Rs.13,72,780/- 3. 01.01.01 JYP 894278 Rs.3,567,974/- 4. 22.01.00 US$ 7643.90 Rs.8,14,807/- 5. 05.02.01 US$ 8511.92 Rs.5,03,551/- 6. 04.12.00 JPY 1182877 Rs.8,60,000/- 7. 06.12.00 JPY 1219245 Rs.5,19,033/- 8. 11.12.00 JYP 8941767 Rs.37,45,706/- 9. 26.12.00 JYP 1388513 Rs.5,91,090/- 10. 08.01.01 JYP 21903899 Rs.91,75,543/- 11. 17.01.01 JYP 1428579 Rs.6,08,146/- 12. 08.02.01 JYP 1464683 Rs.6,23,516/- 13. 10.04.01 JYP 4441697 Rs.16,65,636/- 14. 26.06.01 JYP 4714654 Rs.18,00,526/- Total Rs.2,19,89,0611/- C) Details of remittance of foreign exchange effected though Standard Chartered Bank (formerly known as ANZ Grindlays Bank Ltd.), M.G. Road, Bangalore. Sl. No. Date of remittance Sum remitted in foreign currency Equivalent to Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted Bills of Entry in respect of remittances effected through their Bank. State Bank of India, Industrial Finance branch, Bangalore, vide their letter dated 28.09.11 confirmed that Noticee no.1 had submitted Bills of Entry to them in respect of remittances effected through their bank. From the foregoing, it became evident that Noticee no.1 had remitted foreign exchange through various banks for import of goods during the year 2000-2001, but failed to submit the related Bills of Entry as proof of import in respect of the following remittances amounting to US$ 483750 (equivalent to Rs. 2,25,01,780/- approximately) remitted through Standard Chartered Bank, M. G. Road, Bangalore. After completion of investigation Assistant Director, Directorate of Enforcement, Bangalore filed complaint bearing number 1-3/IMP/41/B2/ 2005 dated 02/11/2012 before the Adjudicating Authority under section 16(3) of FEMA, inter alia, alleging that Noticee no.1 to 3 have neither submitted the Exchange Control Copy of Bills of Entry to the bank as evidence for having utilized the said foreign exchange of US$ 483750 equivalent to Indian currency of Rs. 2,25,01,780.75 approximately for import of the goods, nor h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign currency 1. 10.07.00 US $ 30000 2. 23.08.00 US $ 8550 3. 07.10.00 US $ 37100 4. 25.10.00 US $ 185500 5. 06.11.00 US $ 222600 Accordingly, in absence of proof of imports qua the above 5 instances of remittances, penalty of Rs. 20,00,000/- was imposed by Ld. Adjudicating Authority on M/s Wipro Ltd., vide impugned order dated 30.09.2013. Being aggrieved by the said order Appellant Company filed the present appeal. 3. During arguments, Ld. counsel for the appellant argued that the alleged letter issued by Reserve Bank of India on the basis of which information was conveyed to ED is not relied upon in the complaint, which was the sole basis for initiating the investigation. She contended that the whole proceedings stand vitiated on account of undue and unexplainable delay. The Appellant Company never received any letter dated 05.05.2006 purported to be issued by the Department through registered post and even no proof of service of that registered letter is filed by respondent ED. She stressed that when the receipt of any letter of May, 2006 purported to the issued by the Department was disputed by the appellant, the Adjudicating Authority could not have assumed the issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said bank is not in possession of the old record of erstwhile bank. In support of her contentions, she relied upon the judgment of Hon'ble High Court of Delhi in case Innovative Tech Pack Ltd. v. Special Director of Enforcement 2017 SCC Online Del 6485, wherein it is held as under: 10. Thus, the Courts have repeatedly held that in quasi criminal proceedings the penalty should not be imposed merely because it is lawful to impose the penalty. Whether penalty should be imposed or not is a matter of discretion to be exercised judicially and on consideration of all the relevant circumstances. Further simplicitor from the non-compliance of placing on record no inference can be drawn that the foreign remittance was not used for the purpose of import. It is trite law that to impose a penal liability compliance should be sought within a reasonable time and a person cannot be penalised for not retaining the documents for a period of 13 years. During the course of the present appeal, exchange copy of Bill of Entry qua transaction at Sr. No. 2 has already been placed however, despite best efforts the appellant could not locate the exchange copies of Bills of Entry qua other two tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clared that delay was not a ground by itself that otherwise specifically dealt with the matter in issue. The court at best put to caution requiring a careful and closer scrutiny of the order that was pronounced after undue delay, but if upon such scrutiny also the order is not found to be wrong in any way it may decline to set aside the same. Ld. Counsel for the respondent ED argued that as per Kanwar Natwar Singh (supra), the Noticees are only entitled to the copies of the documents that are relied upon in the show cause notice and in the present case, since the communication dated 05.05.2006 was not relied upon for issue of show cause notice, the non-furnishing of the said document does not violate the principles of natural justice. He submitted that the appellant has neither provided any proof of import in respect of 5 out of total 35 remittances, nor any alternate proof like the Certificate from a Chartered Accountant to the effect that the remittances sent were duly utilized for importing of the stated goods has been submitted in the same regard despite several opportunities being granted to the appellant. Section 10(6) of the FEMA,1999 clearly mandates that any person, other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prior to the passing of the impugned order. The Appellant M/s Wipro Ltd. cannot be penalized for the negligence on the part of the erstwhile ANZ Grindlays Bank for not sending the intimation to RBI regarding the import of goods, or, alternatively, lapse on the part of the RBI for not noting the information received from the concerned bank and for not properly maintaining its records, seeing the fact that out of 35 instances complained by RBI, the Appellant Company is able to prove the import of goods with respect to 30 instances during the investigation of the case. Accordingly, complaint was filed before the Adjudicating Authority only for the five instances of remittances with respect to Standard Chartered Bank (erstwhile ANZ Grindlays Bank). Appellant filed the proof of imports qua the 3 instances before this Appellate Tribunal. Therefore, just because Appellant Company is unable to trace out and file the proof qua the remaining two instances for total sum of USD 38550, benefit of doubt needs to be given to the Appellant Company on account of lapse on the part of the concerned bank i.e. erstwhile ANZ Grindlays Bank, in light of Judgment of Hon'ble Delhi High Court in case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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