Home Case Index All Cases Customs Customs + HC Customs - 2010 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2010 (3) TMI 20 - HC - CustomsContravention of Sections 7 and 8 FEMA read with Regulations 9 and 13 (i) and (ii) of the Foreign Exchange Management (Export of Goods and Services) Regulations, 2000 [FEM EGS Regulations 2000] and Section 42 FEMA for non-receipt of export proceeds of hard disk drives exported during 1997-98 during which period the Foreign Exchange Regulation Act, 1973 (FERA) and the Rules framed thereunder were in force. – held that - The Petitioners are right in pointing out that the Section 7 of the FEMA corresponds to Section 12 of the FERA 1947 whereas Section 8 FEMA corresponds to Section 10 FERA 1947. In M.G. Wagh v. Jay Engineering Works Ltd., the Supreme Court held that Section 10 FERA 1947 (which corresponds to Section 8 FEMA) has only to do with receipt of foreign exchange other than realization of export proceeds. The realization of export proceeds is exclusively covered by Section 12 FERA 1947 (which corresponds to Section 7 FEMA). Consequently in the instant case Section 8 FEMA is not applicable. - In order to invoke Section 7 FEMA, the ED will have to show that the petitioners breached the time limits specified in the FEM EGS Regulations. That it simply cannot since the exports were complete, and so was the contravention of non-realisation of the corresponding proceeds, in 1997-98 itself. – The export was made in 1997-98 – old directors ceased to be director from 14.11.1997 - there is nothing in the complaint to explain how they could said to be in charge of the affairs of JTS and responsible to it for conduct of its business at the time of the contravention. Therefore, even on this ground, these two Petitioners are entitled to succeed.
|