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FEMA - Case Laws
Showing 21 to 40 of 51 Records
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2015 (5) TMI 1120 - DELHI HIGH COURT
Issuance of a writ in the nature of Habeas Corpus in the matter of detention of the petitioner, who is detained passed by the Joint Secretary, Government of India (COFEPOSA), New Delhi - Held that:- Having regard to the categorical assertions made by the learned Additional Solicitor General we are of the view that since a copy of the representation was only marked to the Advisory Board and no copy was supplied to either the Central Government or the detaining authority, it is not open for the petitioner to say that the representation was not decided by them, irrespective of the fact that the representation was addressed to the Advisory Board. Undoubtedly, in case the representation had been served upon the Central Government or the detaining authority, it would have been mandatory for them to have decided the same.
The additional ground raised by counsel for the petitioner i.e., in the absence of documents as admitted by the respondents in the time-chart, the detention order is bad in law and is liable to be quashed, is also without any force, as the time-chart leaves no room for doubt that prior to the passing of the detention order all documents sought to be relied upon were received.
Having carefully examined the time-chart, relevant portion of which has been reproduced above, would show that it is only after all the documents were received and examined the detention order was passed. Hence, the submission of counsel for the petitioner that the detention order is bad in law and is liable to be quashed, as the same is passed in the absence of the relevant documents, is also without any force. No other ground has been urged before this court. In view of the reasons aforestated, we do not find any reason to entertain the present petition and the same is accordingly dismissed, leaving the parties to bear their own costs.
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2015 (5) TMI 1033 - JHARKHAND HIGH COURT
Nature of offences - whether Offences, punishment of which extend to seven years, under the Foreign Exchange Regulation Act, 1973 FERA) being noncognizable in terms of Section 62 of the Act, are bailable or nonbailable? - Held that:- Under FERA the power in terms of Section 45 of the FERA though has been given to police officer and other officer to make search and arrest when warrant but no provision is there that if arrest is affected by the officer other than the police officer, he is required to forward the accused to the officerincharge either for him to admit him on bail or to produce before the Magistrate, rather the provision as contained in Section 35 relating to the arrest, does stipulate that enforcement officer if has reason to believe that one has committed offence punishable under the Act, he may arrest such person and may inform him of the ground for such arrest and the said officer in terms of Subsection (3) of Section 35 will have same power as that of the officerincharge of the police station. That apart, no such provision is there which does speak about the compounding of the offence as is there under the Central Excise Act and Custom Act.
Under the circumstances, the offences under the Foreign Exchange Regulation Act, 1973 punishment of which extend to a period of seven years, cannot be taken to be bailable, rather in terms of the provision as referred to above and also in view of the Second part of Schedule I to Cr.P.C are held as nonbailable.
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2015 (5) TMI 939 - DELHI HIGH COURT
Maintainability of appeal - whether the appeals were dealt with by the Appellate Tribunal (which is the new avatar of the Appellate Board) under FERA or FEMA - Held that:- Language of Section 49(5)(b) of FEMA is suggestive of the fact that it is only an appeal, which was pending before the Appellate Board, and which could not be disposed of before the commencement of the Act (i.e., FEMA), would stand transferred to the Appellate Tribunal. Therefore, to suggest that the subject appeals, were disposed of by the Appellate Tribunal, based on the said provision, in my view, does not appear to be, on a plain reading of the provision, the correct position of law. - since the subject appeals were not pending on the date of commencement of FEMA, the Appellate Tribunal, which got constituted after the dissolution of the Appellate Board, had exercised powers under FERA and not had taken recourse to the provisions of the FEMA.
In so far as Section 35 of the FEMA is concerned, it gives a right to an aggrieved party to prefer an appeal against “any” “order” or “decision” of the Appellate Tribunal. Therefore, an appeal, even against an interim order of the Appellate Tribunal, will be available to the petitioners. The appeal, however, will have to be preferred, by the aggrieved party (in this case the petitioners herein) before the concerned High Court. The explanation to Section 35 of the FEMA, sets out, as to which High Court would be the appropriate court in a given case. It is not the petitioners’ case that they are ordinarily residents of Delhi or, they carry on business or personally work for gain within the jurisdiction of this court. That being so, this court is not the appropriate court where an appeal under Section 35 of FEMA can be preferred by the petitioners - Appeal not maintainable - Appeal disposed of .
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2015 (5) TMI 907 - DELHI HIGH COURT
Violation of the provisions of Section 9 (1)(b) and 9(1)(d) of FERA - Receipt and distribution of money - Receipt of commission - Validity of assessment proceedings - inordinate delay in conclusion of the proceedings - Held that:- Frivolous proceedings or proceedings taken out to merely delay the day of reckoning cannot be treated as proceedings taken in good faith, and that, mere fact on an application or petition, a stay is granted by a superior court is no ground to construe that the proceedings are not frivolous as very often such orders are obtained on exparte representation. In effect, it was observed by the court that while it may not be advisable or practicable to fix time limit for trial of offences, the courts while ascertaining whether undue delay has occurred must have regard to all attendant circumstances including the nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions, i.e., that which is termed as “systemic delays”. In sum, the guideline formulated is to balance and weigh all relevant factors.
Respondents from very inception have procrastinated in prosecuting the case unmindful of the detriment that it would cause to the petitioner. - petitioner, was entitled in law to seek copies of the relied upon documents. The fact that respondents admittedly kept them back till March 2004 clearly shows that either they lacked, for whatever reasons, the interest to prosecute the petitioner or, they had no actionable case against the petitioner.
Despite, repeated requests made on behalf of the petitioner to summon panch witnesses, the said request was declined by the respondents. This request attains significance as SCN proceeds on the basis as if the petitioner was the owner of the Minto Road premises. The premises, (since then demolished) was, concededly, a Government accommodation. The reason why the petitioner happened to visit the Minto Road premises would have, perhaps, come to light if, an opportunity was given to the petitioner to cross-examine the panch witnesses, who accompanied the official witnesses at the time of search. - Similarly, the production of co-noticees who allegedly received moneys distributed by the petitioner was equally important from the point of view of the petitioner. These persons have not been produced for cross-examination at least since 2004; despite a categorical request made in this behalf in the communication dated 27.07.2004 addressed by the petitioner’s counsel to the respondents.
There were no answers forthcoming on behalf of the respondents on these aspects of the matter. There are no answers supplied in the counter affidavit as well. The reason for the same perhaps is, that these witnesses have either died or are not traceable. Either way, the dis-appearance of evidence which could be crucial to the petitioner’s case has occurred on account of the delay on the part of the respondents in concluding the adjudicatory process with due expedition. - adjudication cannot proceed any further on account of undue and unexplained delay in concluding the proceedings. Accordingly, the adjudication proceedings, which commenced vide memorandum dated 14.11.1995, are quashed. - Decided in favour of appellant.
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2015 (5) TMI 368 - MADRAS HIGH COURT
Recovery of large amount of cash - contravention of the provision of Section 9(1)(b) and 9(1)(d) of FERA Act, 1973 - Offence under Section 56(1)(i) of FERA Act and Sections 49(3) and (4) of FEMA Act, 1999 - Reliability on co-accused's statement - Held that:- confession of co-accused is admissible only if the case of other co-accused has been tried jointly as per Section 30 of Indian Evidence Act. In such circumstances, no reliance can be placed on Exs.P5 and P7/statements of Haja Mohideen - It is true, statement of respondent/accused was recorded under Section 40 of FERA Act. Once the respondent has admitted his guilty, he ought to have proved his innocence. There is presumption under Section 59 of the FERA Act and burden is shifted on the accused to prove that he is innocent as per Sections 71 and 72 of the FERA Act - Ex.D13 shows that the respondent was alleged to have been hit by some persons (i.e.) Enforcement Officers on 11.04.1990 and 10.04.1990 and that the respondent was complained of eye pain for six days and the accused was given treatment for the injuries. So Ex.D10 is affirmed and fortified by Exs.D12 and D13, which shows that Exs.P12 and P14/statements of the accused are obtained by coercion.
Except the statement of co-accused, no other independent witness was examined. Even though there are two attestors for the seizure mahazar, no one was examined and no reason has been assigned for non examination of those two independent witnesses, who were present at the time of searching A1/Haja Mohideen, Munavar Hussain and Syed Mohammed Buhari, who were sitting in the car. As per the judgment reported in [2009 (12) TMI 251 - DELHI HIGH COURT] (Directorate of Revenue Intelligence v. Moni),even though statement has been recorded under Section 40 of FERA Act, no recovery was effected from the respondents. This judgment is squarely applicable to the facts of the present case. - the respondent has proved his innocence by way of examining himself as D.W.1 and marking Exs.D1 to D14. The trial Court has also rightly held the respondent has proved that he is innocent by way of marking documents and hence, acquitted the respondent/accused for offences under Sections 9(1)(b) and 9(1)(d) of FERA Act, 1973 and Section 56(1)(i) of FERA Act, 1973 read with subsections 3 and 4 of FEMA Act, 1999. So the judgment of acquittal passed by the trial Court does not suffer any perversity and it is hereby confirmed. - Decided against Revenue.
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2015 (4) TMI 1327 - BOMBAY HIGH COURT
Violation of the provisions of FEMA - penalty u/s 13 (1) of FEMA imposed - freezing the bank account as exercised by Assistant Director under Section 37 (3) of FEMA - HELD THAT:- The above provision empowers the Assistant Director to exercise powers under the Income Act 1961. Thus the communication dated 17/11/2014 freezing the petitioners' fixed deposit account in Bank of Baroda is submitted to be in terms of Section 132 (3) of the Income Tax Act 1961. However, in terms of Sections 132 (8) of the Income Tax Act 1961 the life of such a freezing order is only 60 days.
Admittedly, the period of 60 days have long expired after the communication dated 17/11/2014. Mr. Vaze, learned counsel for the Enforcement Directorate is not able to show any extension granted or any other communication thereafter freezing the account. Consequently, the communication dated 17/11/2014 is no longer valid in law and the same is quashed and set side. For the purpose of this petition we have not examined the larger issue viz. the scope of Section 37 of FEMA and its applicability even after the show cause notice has been issued by the Adjudicating Authority.
We do not interfere with the show cause notice dated 18/12/2014. However, the Adjudicating Authority shall dispose of the show cause noticed dated 18/12/2014 as expeditiously as possible after following the principles of Natural Justice.
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2015 (4) TMI 1217 - APPELLATE TRIBUNAL FOR FORFEITED PROPERTY, NEW DELHI
Applications for additional evidences - denial of natural justice - offence under SAFEMA - Held that:- After careful perusal of all the submissions and documents we are satisfied that the Competent Authority decided the case without giving a reasonable opportunity to the appellants to produce all the evidence before him. We are also guided by the fact that upon verification and examination, the submissions about the legal acquisition of the forfeited properties have been found to be acceptable by the ld. Authorized representative for the respondent. We accordingly allow both the miscellaneous applications for additional evidences filed by the applicants/appellants and take on record the additional documents filed by the appellants.
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2015 (4) TMI 985 - BOMBAY HIGH COURT
Detention of petitioner - Prevention of smuggling of goods - Held that:- Detaining authority, after passing the detention order dated 27th February, 1989 was indifferent in securing the detenu by not taking proper action with great caution. It further appears that the police authorities of the Respondent No.4 were also not prompt in their action in executing the said detention order and the execution of the said detention order was unduly delayed, which allowed the detenu to remain at large for a long period and has consequently defeated the very purpose of the impugned order. The Respondent Nos.1 and 2 have failed to satisfactorily explain the delay occurred in executing the order of detention after a lapse of abut 26 years. As has been held by the Supreme Court in the case of P.U. Iqbal (1991 (12) TMI 269 - SUPREME COURT), the delay throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently renders the detention order bad and invalid because of the 'live and proximate link' between the grounds of detention and the purpose of detention is snapped in arresting the detenu. The Petition, therefore, deserves to be allowed thereby setting at liberty the detenu forthwith - Decided in favour of appellant.
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2015 (4) TMI 639 - KERALA HIGH COURT
Imposition of penalty - prohibition of any payment into a credit of a resident outside India except with general or special permission of the Reserve Bank of India - Held that:- Admittedly, the payment was made in India towards customs duty payable by the non-resident Indian while importing the car. The adjudicatory authority with reference to notification No.16/2000, dated 03/05/2000 held that only certain payments are allowed to be made in favour of a resident outside India during his stay in India and not one that was paid by the petitioner to the importer of the car, who is a Non-resident Indian. - The payment now effected is not one referable as permitted under notification No.16/2000, dated 03/05/2000. The notification No.FEMA/17/RB-2000, dated 03/05/2000 relied by the learned counsel for the petitioner has no application in this matter, as the same deals with the payment in Indian rupees to residents of Nepal and Bhutan. The adjudicatory authority passed the order after adverting to the relevant provisions. I do not find any infirmity with the order passed by the adjudicatory authority in regard to the decision making process - Decided against the appellant.
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2015 (4) TMI 232 - MADRAS HIGH COURT
Contravention of Section 9 (1) (b) and (d) of the Foreign Exchange Regulation Act, 1973 - Penalty u/s 50 - Criminal prosecution for Economic Offences - Economic Offences Court acquitted the appellant holding that the prosecution has not proved the guilt of the appellant beyond all reasonable doubt - Imposition of pre deposit condition for hearing appeal against imposition of penalty - Held that:- In view of the decision of the Supreme Court in Standard Chartered Bank's case (2006 (2) TMI 272 - SUPREME COURT OF INDIA), which has also been rendered under the provisions of the Foreign Exchange Regulations Act, the plea of the appellant that on his acquittal in the criminal case, no penalty is imposable on him, does not merit consideration, since the Supreme Court has categorically held that adjudication and prosecution are two independent proceedings and the finding in one is not conclusive in the other. In view of the above decision of the Supreme Court, this Court finds no reason to interfere with the order passed by the Appellate Tribunal. - Decided against appellant.
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2015 (3) TMI 1165 - APPELLATE TRIBUNAL FOR FOREIGN EXCHANGE, NEW DELHI
Application for amendment in the memo of appeal - Held that:- The amendment application appears to have been made bonafidely and through it the appellant wants to bring on record the subsequent developments. Through the proposed amendment, no new cause has been set up by the appellant and is in continuation of the facts which were placed earlier. The subsequent developments are being placed before the Tribunal, so that they may be duly considered at the time of the final disposal of the appeal. The application, therefore, deserves to be allowed.
The application for amendment in the memo of appeal is allowed. The amendment be incorporated within 10 days of the receipt of the copy of the order. Reply/written statement, if any may be filed by the respondent within 15 days thereafter. List on 26-5-2015 for hearing.
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2015 (3) TMI 687 - DELHI HIGH COURT
Misuse of telephone line - one ISDN line was made a permanent channel at each of the above premises and thereafter by using sophisticated equipment international calls were being distributed to Delhi & nearby areas illegally through PSTN (Public Switch Telephone Network) - One ISDN line has a bandwidth of 144 Kbps and this bandwidth was misused to make about 24 voice calls in one single ISDN call, which caused loss equivalent to the charges for 22 lSD calls to the Govt. of India in terms of foreign exchange - Held that:- statutory requirement of issuance of notice under proviso of Section 61(2)(ii) of the FERA, its date and manner as well as the failure to consider the petitioner's reply has resulted in manifest error in the exercise of jurisdiction by ACMM . The order taking cognizance in the instant case and issuance of summons is contrary to law.
Thus impugned order of cognizance and summoning of petitioner by ACMM vide order-dated 27th May, 2002, is illegal and is against the settled law and is liable to be quashed as the petitioner was not given opportunity as envisaged in law under Section 61 of the FERA which is apparent from the fact that complaint was filed and initiated in a haste manner before the ACMM even before the expiry of the period of opportunity granted to petitioner and the Trial Court in utter ignorance of the right given to the petitioner under Section 61 (2) and the bar imposed upon. The Trial Court thereby upon taking cognizance, issued process against the petitioner, which is apparent from the fact that the trial court did not even record in the impugned order about the fulfillment of statutory and mandatory requirement of Section 61 (2) of the FERA.
With regard to Show Cause Notice for adjudication proceedings dated 4th April, 2002, which was served upon the petitioner on 22nd August 2002 i.e. after filing of the complaint, which was replied by petitioner vide reply dated in 19th September, 2002. - It is admitted fact that no proof of service of notice was filed by the respondent at the time of filing the complaint on 27th May, 2002 to establish that an opportunity in terms with Section 61 (2) was given to the petitioner and the petitioner failed to respond the same by showing that it has permission from the RBI or not making him liable for prosecution under Section 56 of the FERA.
Legal bar imposed in proviso to Section 61 of the FERA, is ought to have satisfied himself at the first instance before issuance of the process about compliance of proviso to Section 61 (2) about the factum of opportunity given to the accused and his satisfaction to this effect must be there before taking cognizance against the petitioner in exercise of his legal duty, as there is a statutory bar imposed upon the ACMM from taking cognizance. If the trial court would have exercised his legal duty diligently in terms of Section 61 (2) of the FERA the cognizance could not have been taken for want of granting an opportunity to the petitioner, as done by the trial court in a mechanical manner. - Impugned order is liable to be set aside - Decided in favour of appellant.
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2015 (2) TMI 1160 - KERALA HIGH COURT
Penalty under Section 13(1) of Foreign Exchange Management Act, 1999 - direction to the fourth respondent seeked to release the balance amount directed to be released to the petitioner under Ext.P1 order - Held that:- As a statutory appeal under Section 17 of the Act is pending before the fifth respondent and the said amount cannot be released during the pendency of the said appeal thus find some force in the objection raised by the revenue.
The grievances of the petitioner can be redressed by directing the fifth respondent to dispose the statutory appeal at the earliest. The fifth respondent is directed to dispose Ext.P5 appeal at the earliest, at any rate, within a period of two months from today.
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2015 (2) TMI 1044 - MADRAS HIGH COURT
Contravention of Section 9 (1) (b) and (d) of the Foreign Exchange Regulation Act, 1973 - Whether in a case where an offence was punishable with a mandatory sentence of imprisonment, a company incorporated under the Companies Act, can be prosecuted, as the sentence of imprisonment cannot be imposed on the company? - Held that:- In view of the decision of the Supreme Court in Standard Chartered Bank's case (2006 (2) TMI 272 - SUPREME COURT OF INDIA), which has also been rendered under the provisions of the Foreign Exchange Regulations Act, the plea of the appellant that on his acquittal in the criminal case, no penalty is imposable on him, does not merit consideration, since the Supreme Court has categorically held that adjudication and prosecution are two independent proceedings and the finding in one is not conclusive in the other. In view of the above decision of the Supreme Court, this Court finds no reason to interfere with the order passed by the Appellate Tribunal. - Decided against appellant.
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2015 (2) TMI 460 - APPELLATE TRIBUNAL FOR FOREIGN EXCHANGE, NEW DELHI
Imposition of penalty jointly and severally - failure to take reasonable steps for repatriation of export proceeds of US $ 23580.02 in respect of goods exported under 3 GRIs - Held that:- While going through the order of penalty, I have noted that there is hardly any discussion on the role of the partners that led to non-realisation of the export proceeds of the 3 GRs and the ld. adjudicating officer has not arrived at any finding to show that the partners were responsible for non-realisation of the export proceeds. Section 68(1) of FERA, 1973 lays down the provision for monetary penalty on the partner only when it is found that he was in charge of, and was responsible to, the company for the conduct of business of the company. On this finding only, he shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. While sub-section (2) of Section 68 of FERA, 1973 lays down a provision that where it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.
Provisions of Section 68 of FERA, 1973 are more explicit in this regard. I, therefore, find that the impugned order imposing joint penalty on the partners before proving that non-realisation of the three GRs was attributable to each of them, is liable to be quashed and set aside.
It appears to me from the correspondence exchanged between the appellants and the authorized dealer Punjab National Bank that the appellants had been realizing full amounts of export proceeds against all other exports made under different GRs but payment against three GRs in question could not be realized due to taking delivery of the goods by the foreign buyer fraudulently. That there had been fraudulent delivery of the goods is proved by the certificate dated 20-1-2003 issued by the authorized dealer whereunder they have confirmed the same and also the fact of original complete set of documents in their possession. Therefore, I am led to believe that the appellants were making all reasonable efforts for realizing the export proceeds but realization in respect of three pending GRs could not be made due to circumstance beyond their control.
On plain reading of the sub section (2) and sub section (3) of Section 18 of FERA, 1973, it is crystal clear that the Act does not render non-realisation of export proceeds per se punishable thereunder. The essential ingredients of the sub-section (2) of Section 18 is doing or refraining from doing anything or taking or refraining from doing anything or taking or refraining from taking any action which has the effect of securing the result which is envisaged either in clause (a) or (b) of the said sub-section. It would be sufficient for an exporter to discharge the adverse presumption under Section 18(3) of the Act when he shows that reasonable steps within his limitations have already been taken. In the instant case the learned adjudicating officer has failed to correctly appreciate the nature and extent of the presumption to be drawn in terms of Section 18(3) of the Act. In these circumstances, the ld. adjudicating officer appears to have erred while holding the appellant company guilty of the alleged contravention for not taking reasonable steps. - appellants have taken all reasonable steps to rebut the presumption under Section 18(2) of FERA, 1973 and therefore, the view taken by the ld. adjudicating officer in the impugned order is not tenable on the facts and circumstances of the case. - Decided in favour of appellants.
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2015 (2) TMI 415 - APPELLATE TRIBUNAL FOR FOREIGN EXCHANGE, NEW DELHI
Contravention of the provisions of Section 9(1)(b), 9(1)(d) and Section 64(2) r/w Section 9(1)(d) of Foreign Exchange Regulation Act, 1973 - Imposition of personal penalty - violation under Section 51 of FERA, 1973 - whether the adjudicating authority has given the appellant an opportunity of cross-examining the mahazar witnesses and the person who recorded the voluntary statement of the appellant - Held that:- Sh. Kiran S. Javali, Counsel for the appellant chose not to pursue the cross-examination but preferred the case to be decided on the written submission he proposed to make and requested the Adjudicating Authority to conduct the proceedings on the basis of facts and evidence on record. Sh. Kiran S. Javali, Counsel for the appellant filed his written submission on 19-10-2010 which is taken into record. Therefore, I am of the view that appellant by choosing not to proceed with cross-examination of witnesses has himself given a go by to the direction of the Hon’ble High Court. Even his written submission is bereft of the demand of cross-examination and, it appears, he had no dispute at all about the issue of cross-examination of witnesses. For the reasons stated herein, the question of cross-examination does not arise and the adjudication order now is not vitiated for want of opportunity to cross-examine the witnesses.
Whether the Adjudicating Authority is justified in re-adjudicating the case to the extent that was already decided by this Tribunal by Order dated 19-7-2002. - Held that:- remitting back the case to the Adjudicating Authority by the Hon’ble High Court of Karnataka was for conducting a fresh enquiry into the allegation as made in the SCN and adjudicating the case according to law. The word “fresh enquiry” in this case means conducting the adjudicating proceedings over again setting aside the earlier Adjudication Order. When the fresh enquiry led to passing of the present Adjudication Order which replaced the earlier Adjudication Order, this Tribunal’s Order dated 19-7-2002 passed in Appeal No. 779/1993 against earlier Adjudication Order is non-existent in the eyes of law. Therefore, exoneration of the appellant of charges under Section 9(1)(b) & (d) of FERA, 1973 under this Tribunal’s earlier Order dated 19-7-2002 stands disallowed at the threshold and that Order no more subsists.
Appellant’s dispute was only with the drawal of Panchnama in the office of the DRI consequent to the search of the appellant and his scooter. The appellant was apprehended at about 2115 hours of 6-1-1989 near Sawarkar Baba Pai Petrol Pump, Mangalore. It is evident from a bare perusal of the Panchnama and cross-examination of Sh. Gangadharan, Assistant Enforcement Officer that there was a prior intelligence on the movement of the appellant on or about 2100 hrs. at the spot where he was apprehended and he would be having at his person certain amounts which was meant for distribution in violation of the provisions of the Act. Since it was very late in the night, considering the safety and security of the appellant he was taken to the office of DRI for the search of his person and the scooter for which witnesses were called to the office and a thorough search resulted in seizure of ₹ 8.50 lacs wrapped in newspaper sheets kept in gunny bag in the leg space of his scooter and of documents in 2 sheets recovery of which has not been disputed by the appellant. Therefore, I also concur with the finding of the ld. Adjudicating Authority that the conduct of the search at the office of DRI at Mangalore by the officers of Enforcement Directorate and DRI does not impair the adjudication proceedings.
Appellant miserably failed to prove the source of ₹ 8.50 lacs when he claims that the amount of ₹ 8.5 lacs alleged to have been seized from him actually belongs to him. He has not produced any document to prove the source of income. I find that the statement is only an explanation to the seizure of ₹ 8.5 lacs and documents. Sheet No. 1 lists date wise receipts of the amount of ₹ 57,00,000/- in 14 occasions whereas Sheet No. 2 shows payments of ₹ 48.50 lacs made to Sh. Abdul Basith Kadli in 13 occasions. The entire case against the appellant is made out from the explanation contained in the statement to the seizure. The fact of receiving and making payments as evident from the recovery and seizure has not been disputed by the appellant.
As regards the criminal complaint initiated by the respondent under Section 56 of FERA, 1973, the appellant submitted that the complaint was supported with the same set of evidence that have been relied upon in the adjudication proceedings. Since the complaint was discharged exonerating the appellant of criminal prosecution and the respondent had not challenged the Order of exoneration, the impugned order passed in pursuance of the SCN supported by the same set of evidence is liable to be quashed and set aside.
As regards the penalty, the Adjudicating authority is vested with power to impose penalties under Section 50 not exceeding five times the amount or value involved in any contravention. I am, therefore, of the view that the penalties imposed on the appellant are commensurate with the quantum of amounts involved in the contravention. - Reason to interfere in the impugned order in so far as it relates to the levy of penalties of ₹ 5,70,000/-, ₹ 4,80,000/- & ₹ 8,50,000/- on the appellant respectively for contravention of Section 9(1)(b), 9(1)(d) & 9(1)(d) r/w Section 64(2) of FERA, 1973 and also to the confiscation of ₹ 8.50 lacs under Section 63 of the Act. - Decided against assessee.
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2015 (2) TMI 374 - CALCUTTA HIGH COURT
Seizure of currency - cash balance found from factory premises - Held that:- Currency notes constitute property of the petitioner within the meaning of Article 300A of the Constitution of India. No person can be deprived of his property save by authority of Law. There is no explanation at all as to the circumstances in which the property of the petitioner has been seized. - writ application is disposed of by directing the respondents-authorities to return the cash seized on February 22, 2011 along with interest that has accrued on the aforesaid sum of ₹ 10,00,000/- to the petitioner within a fortnight from the date of communication of this order. - Decided in favour of petitioner.
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2015 (2) TMI 334 - GUJARAT HIGH COURT
Proceedings for forfeiture of her property under SAFEMA - Removal of superstructure of property - Forfeiture of property - Ownership of property - Society opposed request of CGOVT for entering its property in its name that a member of the Society is only the owner of the superstructure, the ownership of the land always remains with the Society, and further that in view of Section 22 of the Gujarat Cooperative Society Act, the Central Government cannot be a member of the Cooperative Society - Held that:- Central Government obviously be interested in liquidating the property by selling the property and to recover the sale proceeds. On the other hand, the Society has in the said affidavit in-rejoinder as well as through the counsel before the Court made it clear that if any individual member applies for membership of the society, who is otherwise qualified under the byelaws and agrees to abide by the byelaws of the society, the society would have no objection, subject to clearance of legal dues of the Society, to make him a member of the society, and transferring the plot in his name. - It would be open for the respondents and particularly, Respondent No.1 to identify the intending purchaser of the plot in question by assuring highest possible price to the Central Government through such means as may be permissible. - The Society shall make such purchaser its member and transfer the plot in question in his or her name, of course subject to clearance of all the legal dues of the society and payment of such transfer charges as may be permissible under the law. - Petition disposed of.
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2015 (2) TMI 296 - ALLAHABAD HIGH COURT
Condonation of delay - Held that:- A perusal of the averments made in the application moved by the appellant seeking condonation of delay in filing the appeal goes to show that the averments made in the application reflects that the explanation is wholly inadequate and unsatisfactory - Under Section 35 of FEMA, appeal against the decision or order of the Appellate Tribunal may be filed in the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal on any question of law arising out of such order. Proviso to Section 35 of FEMA makes it clear that the High Court if satisfied that the appellant was prevented by sufficient cause from filing the appeal within 60 days, may allow it to be filed within a further period not exceeding sixty days. Thus, under Section 35 of FEMA, appeal against the decision or order of the Appellate Tribunal would lie before the High Court provided the appeal is filed within a period of 60 days, extendable by a further period not exceeding 60 days, if the High Court is satisfied that sufficient cause prevented the filing of the appeal within the prescribed period. To put it simply, any appeal filed before the High Court under Section 35 of FEMA beyond 120 days would be time barred.
Admittedly, appeal has been filed after considerable long lapse of time i.e. 352 days. Even if it is assumed that certified copy of the impugned order dated 2.3.2009 was received on 31.3.2009 by the appellant and that period has to be excluded from consideration even then, there is a delay of more than 120 days, which cannot be condoned. - Condonation denied.
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2015 (2) TMI 260 - DELHI HIGH COURT
Quashment of the detention order passed under Section 3(1) (i) & 3 (1) (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 against Mr. Rameshwar Sharma (detenue), the petitioner’s husband, and a direction to set at liberty the detenue from detention - Held that:- In the matter at hand, after the alleged seizure of red sanders from possession and custody of the detenue on 28/29.09.2013, and conduct of investigation, the complaint was filed under Section 132 and 135 of the Customs Act on 28.11.2013. Thus, the investigation was complete by the said date. Further, the show cause notice under the Customs Act was issued to the detenue on 24.03.2014, which clearly establishes that the material evidence required for passing of the detention order was available with the Detaining Authority. However, inspite of the same, the detention order was not passed till 25.07.2014. The detention order was passed after a delay of about 8 months, which has defeated the purpose of the detention as it was to prevent the detenue from acting in a prejudicial manner by indulging in the prohibited trade. Thus, the live link had already broken by the time the detention order was passed belatedly on 25.07.2014. There is no satisfactory or convincing explanation brought on record by the respondents to explain the aforesaid delay.
It is evident from the facts of the case that the detenue informed the sponsoring authority about his illness, and that he was confined to his bed on 05.08.2014 and, thereafter, made regular correspondence with the sponsoring authority. Again, he personally appeared before the Sponsoring Authority on 14.08.2014. The above circumstances clearly establish the availability of the detenue at his residence and on one occasion, even before the Sponsoring Authority. Despite this the detention order was not served upon the detenue. The respondents have not disclosed any attempt made to serve the detention order soon after it had been made. It is not the respondents case that the detenue was avoiding service of the detention order. - Detention order quashed - Decided in favour of appellant.
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