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FEMA - Case Laws

Showing 1 to 7 of 7 Records

• 2014 (1) TMI 1348
  

  Violation of FEMA - Imposition of penalty - Sale of foreign currency at higher value - Held that:- there was no scope to allege a violation of paragraph 3 of the FLM or for that matter Sections 6(4) and 6(5) of FERA, 1973. Based on the interpretation of Sections 6(4), 6(5) of FERA, 1973 and paragraphs 3 & 9 of the FLM, we have held that the Original Authority, the Appellate Tribunal as well as the Division Bench of the High Court failed to appreciate the issue in the proper perspective while holding the appellant guilty of the violation alleged - sale of foreign currency at higher value was not the basis for the contravention and imposition of the penalty as against the Appellants.

  Sale effected by the Appellants on a rate higher than the rate prevailing in the market was not the basis for the alleged violation of paragraph 3 of the FLM read with Sections 6(4), 6(5) and 7 of FERA. In the confiscation order passed by the Customs Authorities, where again the Appellants were also one of the noticees, no fault was found as against the Appellants on that ground - impugned orders by which the Appellants were found guilty of the violation of paragraph 3 of FLM read with Sections 6(4), 6(5) and 7 of FERA and the consequential imposition of penalty of Rs.50,000/- was wholly unjustified. The impugned orders are liable to be set aside and they are accordingly set aside. If the Appellants have parted with the penalty amount imposed under the impugned orders, the Respondent is directed to refund the same to the Appellants along with simple interest at the rate of 6% per annum, within two months from the date of this judgment - Decided in favour of assessee.

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• 2014 (1) TMI 1223
  

  Failure to furnish Exchange Control Copy of the Bill of Entry in the bank - Contravention of provisions of FERA - Penalty u/s 50 - Tribunal dismissed appeal for bar of limitation - Whether the appeals before this Court are barred by limitation prescribed in Section 35 of FEMA or not - Held that:- The aforesaid Section prescribes a period of 60 days from the communication of the decision of the Appellate Tribunal for filing an appeal to this Court, but this Court can condone the delay in filing an appeal for a further period not exceeding 60 days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the prescribed period - if an appeal preferred by the appellants before the Tribunal, it was required to be dealt with under Section 19 of the FEMA and, therefore, the Appellate Tribunal could entertain the appeals, even after the expiry of 45 days from the receipt of the order of the adjudicating authority if it was satisfied that there was sufficient cause for not filing the appeal within the aforesaid 45 days’ period. There is no upper cap on the delay which could be condoned by the Appellate Tribunal, in the event of its being satisfied that there was sufficient cause for not filing the appeal within the prescribed period.

  It can hardly be disputed that the Tribunal ought to have considered the application of the appellants for condonation of delay in filing the appeals on merits instead of dismissing them on the ground that the delay beyond 45 days from the prescribed period could not be condoned by it - impugned order dated 5.2.2007 passed by the Appellate Tribunal is hereby set aside and the matter is remanded back to the Tribunal for deciding the application for condonation of delay on merit and in case the delay in filing the appeals is condoned, the said Tribunal shall also decide the appeals on merit - Decided in favour of assessee.

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• 2014 (1) TMI 1173
  

  Contravention of provisions of Section 18(2) - Failure to secure export value - Held that:- exporters had discharged the burden placed on them by producing before the Board two cheques of Rs.1,88,176/- and Rs.1,17,841/-, which they claimed to have sent to the Commissioner of Customs. Admittedly, the cheques referred to above were never encashed by the Commissioner of Customs. Obviously the cheques could not have been encashed by him without first verifying the extent of export incentive availed by the exporters in respect of GRs which were subject matter of RBI communication dated 24.4.2003.

  Tribunal was not right in law in saying that the burden with respect to proof of surrendering the export incentive shifted to the Directorate of Enforcement on account of their not producing any documents with respect to the extent of the export incentive availed of by the exporters. The burden in this regard, particularly, in view of the RBI communication dated 24.4.2003, always continued to remain with the exporters and it was for them to satisfy the Adjudicating Officer that all the export incentives which they had availed of in respect of GRs which were subject matter of the RBI letter dated 24.4.2003 had been fully surrendered by them. Even otherwise, an information of this nature is not expected to be in possession of the Directorate. The respondents had to either locate their own record or obtain the relevant information from the concerned Department, and then produce it either before the Bank, or before the Directorate of Enforcement - order passed by the Tribunal is set aside and the matter is remanded back to the Special Director of Enforcement to consider it afresh in the light of the additional documents which the respondents have filed along with affidavit - Decided in favour of Revenue.

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• 2014 (1) TMI 1021
  

  Forfeiture of property - Whether in taking over the property of the contesting respondents, the procedure established by law has been followed by the writ petitioner - proceedings were initiated under SAFEMA, 1976 - activities of smuggling and illegal export of foreign exchange through carriers - Held that:- the show cause notice issued by the writ petitioner suffers from manifest irregularity, non-application of mind and in total perversion of SAFEMA. Though this Court has held that in a given case, there is no impediment for the competent authority to file a writ petition, the said discretion must be properly exercised by the authority. It is only in cases where Tribunal's order is perverse, the question of entertaining a writ petition will arise. It is not a fit case where any interference is called for in the impugned order of the third respondent Tribunal.

  Section 6(1) of the SAFEMA will have to be strictly followed and the authority's satisfaction must be recorded in writing, failing which, the notice is liable to be quashed. - Writ petition dismissed.

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• 2014 (1) TMI 972
  

  Imposition of penalty - Contravention of the provisions of Section 9(1)(b) and 9(1)(d) - Tribunal rejected assessee's petition for waiver of penalty - Held that:- challenge made by the petitioner to the impugned order, does not stand to legal scrutiny. Except by contending that the earlier Appellate Board had orally allowed the petition for waiver of pre-deposit, the petitioner is not able to prove to the satisfaction of the Court that there was such an order in existence. It must also be noted that FEMA is a complete Court by itself and the question of challenging the Tribunal's order in a writ petition under Article 226 of the Constitution of India, will not arise - Act cannot be bypassed and the jurisdiction under Article 226 of the Constitution of India cannot be invoked - Decided against assessee.

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• 2014 (1) TMI 796
  

  Failure to take steps for realization of export outstanding - Maintanability of appeal - Section 52 of FERA or Section 19 of FEMA - Held that:- Merely because the proviso provides for deposit of penalty while preferring appeal against the order imposing penalty, cannot be said to limit the wide amplitude of the main provision providing for appeal “by any person aggrieved from any order made by the adjudicating authority”. “Any order” would include an order exonerating some of the noticees. Reference may also be made to Section 49(4) of FEMA, being a transitory provision providing for the cases governed by FERA to be continued to be governed by the said Act notwithstanding the repeal thereof. In this regard, it may also be noted that the order dated 26th September, 2003 of the Enforcement Directorate also records the same to have been made under the provisions of the FERA and not under the provisions of FEMA.

  Once it is held that the grievance as raised in this petition is appealable and once it is admitted that appeal indeed was preferred, this writ petition would definitely be not maintainable - Even if the Appellate Tribunal has not returned any findings on the grievances raised by the petitioner qua the exoneration of the respondents No.3&4, the dismissal of the appeal indicates that the said grievance has also been negatived - If the petitioner is aggrieved of the order of the Appellate Tribunal, she has remedies thereagainst and cannot pursue this petition qua the order which has been subject matter of appeal - Decided against Petitioner.

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• 2014 (1) TMI 692
  

  Complaint under section 56 of the FERA - Notice u/s 61 not served - Held that:- respondents maintain in their counter affidavit that Opportunity Notices in terms of Section 67 of FERA were issued to petitioners and the documents relied upon in the complaint in question were supplied to petitioners - The stand of petitioners that there was no intentional or wilful default on their part also raises a triable issue which cannot be determined while exercising inherent jurisdiction of this Court under Section 482 of Cr.P.C. and that too, at the threshold of these proceedings - averments made in paragraph No. 2 (vii) & (viii) of the complaint in question prima facie justify continuance of proceedings arising out of this complaint.

  Pertinently, prosecution of petitioners in the instant Complaint is for contravention of substantive provisions of this enactment i.e. Section 14, 16 & 18 (3) of FERA read with Central Government's Notification No. F-1/67/EC/73-1 & 3 both of 1st January, 1974. So, this question as well as the question of vicarious liability is left open to be considered at the stage of framing of charge/Notice under Section 251 of Cr.P.C., as the case may be - petition is disposed of with liberty to petitioners to urge the pleas taken in this petition on the afore-noted limited extent before the trial court at the stage of framing of charge/Notice, while not commenting upon the merits, lest it may prejudice either side - Decided in favour of Appellants.

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