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TMI Blog2025 (4) TMI 1543X X X X Extracts X X X X X X X X Extracts X X X X ..... erent orders passed from time to time. It was submitted that the challenge to the orders have been made purely on the legal issues. Thus, even this Tribunal may not require to go deep into the facts of the cases and therefore common order can be passed in regard to the three appeals. The prayer was accepted looking to the common legal issues involved in these appeals. 3. For the purpose of clarity, we may make a statement of the cases in reference to different orders. (i) Appeal number 100/2010 The order 27.02.2010 has been challenged only by Shri Keith Fairbrother by way of appeal number 100/2010. The penalty of Rs. 1,75,000/- has been imposed on the appellant Keith Fairbrother for contravention of section 8(1) read with section 68 (1) of the Act of FERA, 1973. (ii) Appeal number 109/2010 Appeal number 109/2010 has been filed by M/s Keith Fairbrother to challenge the order dated 12.03.2010 where penalty of Rs. 1,50,000/- has been imposed for the contravention of section 8 (1) read with section 64(2) of the Act in reference to show cause notice number (II) and Rs. 5000/- for the contravention of same provisions in reference to show cause notice no. (VIII). The appeals in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-resident branches and correspondent are subject to regulation, as applicable to transfer in foreign currency for the purpose of which rupee transfers have to be made. It was alleged that transfer of money in the account of the appellant was in contravention of the Exchange Control Regulation and also of the section 8(1) of the Act of 1973. A reference of Exchange Control Manual was given by the counsel for the parties which provides that transfer of rupees to the account of non-resident branch should not be made until a copy of the application has been written to the Reserve Bank with the permit authorizing the transfer. 8. The allegation for the contravention of the provision of the Manual as well as the Act of 1973 was defended by the appellant. However, in the present appeals, only two legal issues has been raised and would be addressed by us, which are basically jurisdictional issues. 9. The learned counsel for the appellant submitted that the Adjudication against the appellant Keith Fairbrother followed by the impugned order could not have been passed for the reason that he is not a citizen of India and accordingly the Act of 1973 would not apply to him. As per section 1 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nches or agency registered or incorporated in India. Therefore, the jurisdictional issue raised by the appellant is not tenable. 14. The learned counsel further contested the case in reference to section 8(1) and submitted that appellant was "person resident of India" and therefore the penalty was rightly imposed for contravention of section 8(1) of the Act of 1973. The prayer was accordingly made to dismiss the appeal. 15. We have considered the rival submission of the parties and perused the record. 16. The appellant has raised two legal issues in reference to section 1(3) and 8(1) of the Act of 1973. Thus, it would be gainful to quote both the provisions which are quoted thus:- Section 1 (3) :- It applies also to all citizens of India outside India and to branches and agencies outside India of companies or bodies corporate, registered or incorporated in India. Section 8 in The Foreign Exchange Regulation Act, 1973 8. Restrictions on dealing in foreign exchange .-(1) Except with the previous general or special permission of the Reserve Bank, no person other than an authorised dealer shall in India, and no person resident in India other than an authorised dealer shall out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in India; or (b) for carrying on in India a business or vocation in India, or (c) for staying with his or her spouse, such spouse being a person resident in India, or (d) for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period; (iv) a citizen of India, who, not having stayed in India at any time after the 25th day of March, 1947, comes to India for any of the purposes referred to in paragraphs (a), (b) and (c) of sub-clause (iii) or for the purpose and in the circumstances referred to in paragraph (d) of that sub-clause or having come to India stays in India for any such purpose and in such circumstances. Explanation .-A person, who has, by reason only of paragraph (a) or paragraph (b) or paragraph (d) of sub-clause (iii), been resident in India, shall, during any period in which he is outside India, be deemed to be not resident in India; 20. The bare reading of sub clause (III) covers the person other than citizen of India who come and stay in India for taking employment or carrying a business or vocation in India. It can be when he is staying with his or her spouse and spouse being a resident of In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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