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FEMA - High Court - Case Laws
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- 2020 (4) TMI 417
Offence under FERA - Economic Offence cases - failure to realize the respective full export proceeds of the goods within the stipulated period - Transaction in clandestine manner - Whether opportunity notice as contemplated under the proviso to Section 61 (2) (ii) of FERA has been issued to A-1 to A-3? - Whether prior permission as mandated u/s 18 (2) of FERA has been obtained by A-1 to A-3 from the Reserve Bank of India;? - judgment of acquittal recorded by the trial court - HELD THAT:- This Court has no hesitation in holding that even non-issuance of opportunity notice as contemplated u/s 61 (2) (ii) of FERA will not vitiate the case. However, in the case on hand, Ex.P-41, opportunity notice as contemplated u/s 61 (2) (ii) of FERA has been issued to the accused. In such circumstances, the finding of the trial court that no opportunity n....... + More
- 2020 (1) TMI 405
Compounding of contravention of [Regulation 7] of FEMA - Procedure for compounding - HELD THAT:- When the information is brought to the notice of the RBI, before remitting the case to the appropriate adjudicating authority under the amended proviso, exercise of taking decision under sub-rule (2), does not get diluted in any manner. It is open for the compounding authority, after considering the objections received from the Enforcement Directorate and affording an opportunity of hearing, to take a decision to remit the case to the appropriate adjudicating authority so that requirement of sub-rule (2) of Rule 8 is complied with fully. In the instant case, merely coming into existence of the proviso will not render requirement of sub-rule (2) of Rule 8 nugatory. The proviso is in addition to sub-rule (2) and has to be read through sub-rule (....... + More
- 2019 (10) TMI 175
Sh. P. Chidambaram seeks bail - proposal for downstream investment - Petitioner, the then Finance Minister, Sh. P. Chidambaram approved the downstream proposal of INX News on 30.10.2008 - FIR alleging commission against Sh. Karti P. Chidambaram [arraigned as accused No. 3 in the said FIR under Section 120-B read with Section 420 of Indian Penal Code, 1860, Section 8 of the Prevention of Corruption Act, 1988 (hereinafter referred to ‘PC Act’) and Section 13(2) read with Section 13(1)(d) of the PC Act.] HELD THAT:- As petitioner instead of joining the investigation approached this Court seeking anticipatory bail and this Court was pleased to pass an interim order protecting the petitioner from arrest. Pursuant thereto, when the petitioner was called for interrogation under the protective umbrella of a pre-arrest bail reducing th....... + More
- 2019 (9) TMI 180
Fastening liability on a director of a company for contravention of the FERA - Offences by companies - ‘Opportunity Notice’ - HELD THAT:- The adjudication proceedings are being pursued by the ED on the basis that each of the present Appellants was at the relevant time, “in charge of”, and “responsible to” NIL for the conduct of its business. There can be no doubt that the above standard for fastening liability on a director of a company for contravention of the FERA, applies to both criminal proceedings that would result following an ‘Opportunity Notice’ as well as the adjudication proceedings that would follow an SCN/MFA issued under Section 51 FERA. The foundational fact that requires to be shown to exist for proceeding against a person under Section 51 of the FERA read with Section 68 (1)....... + More
- 2019 (9) TMI 162
CBI investigation for violation of provisions of FCRA - Cancellation of registration under FCRA - diversion of the funds for personal benefit of the office bearers or any other individuals - Constitutional validity of Section 43 of the Foreign Contribution (Regulation) Act, 2010 (‘FCRA’) and Rule 22 of Foreign Contribution (Regulation) Rules, 2011 (FCRR) - whether they are arbitrary, unreasonable, ultra vires and violative of Articles 14 and 21 of the Constitution of India? HELD THAT:- It is equally well settled principle of law that laws are not to be declared unconstitutional on the fanciful theory that power would be exercised in an unrealistic fashion or in a vacuum or on the ground that there is a remote possibility of abuse of power. In fact, it must be presumed, unless the contrary is proved, that administration and app....... + More
- 2019 (8) TMI 971
Non-compliance with the direction for pre-deposit - Offence under FEMA - HELD THAT:- The learned counsel for the respondent had earlier taken exception to the maintainability of these appeals at the outset, his submissions having been recorded in the proceedings on 11.07.2019 to the effect that the appellants are belated with reference to the order dated 15.11.2018 which, even otherwise, had not been challenged, the orders sought to be impugned by these appeals being only consequential. At the hearing, the counsel for the appellants was asked if they are now willing to make the pre-deposits as was directed by the appellate tribunal by its order dated 15.11.2018. The counsel answered in the negative taking the position that the appeals at hand raise questions of law. The order dated 15.11.2018 having attained finality, the appellate tribun....... + More
- 2019 (8) TMI 216
Remedy of instituting an appeal to the Special Director (Appeals) - impugned order was served upon Petitioners by pasting on the premises sometime on 23rd February, 2019 and this Petition was lodged in the first week of May, 2019 - time limitation - HELD THAT:- If any issue of limitation arises, we are sure that the Appellate Authority will give due regard to all these circumstances. However, since the Petitioners haves alternate and efficacious remedy available under the FEMA itself, we are not inclined to entertain this Writ Petition. This Petition is disposed of by granting liberty to the Petitioners to institute an appeal against the impugned order, in case the Petitioners so choose. All contentions of the Petitioners are expressly kept open, since we have not examined the merits of the matter.
- 2019 (8) TMI 215
Maintainability of petition - Petition by a person who refuses to subject himself to Indian Laws - whether the Writ Court should exercise its jurisdiction in case of a Petitioner who has been issued a non-bailable warrant by the Special Court under the Prevention of Money Laundering Act, 2002 (PMLA) - HELD THAT;- This Court by its [2018 (2) TMI 762 - BOMBAY HIGH COURT] rejected the above contention and entertained the Petition by this very petitioner. We are informed that the status and condition of the Petitioner viz-a-viz Indian Law continues to remain what it was on 30th January, 2018 i.e. no red corner notice has yet been issued in respect of the Petitioner. These facts are not disputed and distinguished by the Revenue. Thus, this issue having already been considered by a coordinate bench of this Court and no new facts have thereafter....... + More
- 2019 (8) TMI 214
Maintainability of petition - initiation of proceedings u/s 7(3) of the Foreign Exchange Management Act, 1999 - availability of alternative and efficacious remedy of appeal - HELD THAT:- It is not in dispute that the proceedings are initiated by the Adjudicating Authority under Section 7(3) of the FEMA and the impugned order passed by the Adjudicating Authority on 31.8.2017 exercising the powers under Section 13(1) of the FEMA. Therefore, the petitioners have got an alternative and efficacious remedy of appeal before the Appellate Authority under Section 17 of the FEMA - Section 17(4) clearly depicts that on receipt of an appeal under sub-section (1), the Special Director (Appeals) may after giving the parties to the appeal an opportunity of being heard, pass such order thereon as he thinks fit, confirming, modifying or setting aside the ....... + More
- 2019 (8) TMI 138
Permission for withdrawal of petition - Time limitation of Adjudication proceedings under section 13 of FEMA Act - HELD THAT:- It is the Petitioner's contention that the proceedings which are being contemplated against the Petitioner relate to issues which are over 10 to 12 years prior to the issue of the notice. Thus, causing it prejudice. We trust that the submissions made by the Petitioner would be duly considered by the Adjudicating Authority while taking a decision thereon. Petition disposed of as withdrawn with liberty to file a further representation/reply to the impugned notice dated 15th April, 2019 within two weeks from today.
- 2019 (6) TMI 964
Stay of demand - waiver of pre-deposit - Tribunal dismissing the appeals for non-prosecution - HELD THAT:- The appeals filed before the Tribunal could not have been dismissed for non-prosecution. Yet, we may point out that the conduct of the appellants in not appearing for several hearings also cannot be appreciated. We have to necessarily interfere with the common order passed by the Tribunal dated 14-9-2018, which was communicated to the appellants on 25-9-2018. So far as the conditional order passed by the Tribunal is concerned, considering the financial position pleaded by the appellants and their case that they are unable to realize export production in spite of their diligent efforts, we are of the considered view that the appellants have made out a prima facie case. However, this observation is made only for the purpose of imposing....... + More
- 2019 (6) TMI 637
Maintainability of petition - Petitioner's alternate and efficacious remedy against the impugned order made by the Enforcement Directorate, to the Appellate Tribunal for Foreign Exchange, Ministry of Law, Justice and Company Affairs, Government of India - violation of principles of natural justice as certain statements made by some buyers and these statements have been acted upon without afford of any opportunity or cross examination to the Petitioners - HELD THAT:- In the present case, after the show cause notice dated 6th September, 2017 was served upon the Petitioners, the Petitioners chose to file reply through their Chartered Accountant. Neither in the reply nor at any stage of the proceedings before the impugned order came to be made, the Petitioners objected to taking into consideration the statements of the buyers on the groun....... + More
- 2019 (5) TMI 1574
Release of property seized - Proceedings instituted pursuant to a complaint u/s 16(3) of the Foreign Exchange Management Act, 1999 (FEMA) - as alleged show cause notice issued by the concerned officer alleging contravention of the provisions of Section 3(b) of FEMA, read with Regulation 5(2)(c) of the Foreign Exchange Management (Manner of Receipt and Payment) Regulation, 2000 - HELD THAT:- Insofar as Indian currency is concerned, the same was transferred to the Income Tax Authority. Silver and silver articles, which were seized by the respondent. The petitioner claims that he has submitted all the requisite details as called upon to do so by respondent no.2, and has repeatedly requested the respondent to release the said goods. However, the petitioner’s request has not been acceded to, as yet. He submits that the show cause notice ....... + More
- 2019 (5) TMI 1467
Monetary limit for prosecution of FERA issues - Petitioner on trial for the offences under Section 18(2) r/w Section 18(3) of Foreign Exchange Regulation Act, 1973 and under Section 56 of Foreign Exchange Regulation Act, 1973 - Quashing of revisional court’s order - pleas urged in this petition are that in view of the Circular of 5th July, 2001 issued under Section 56 of FERA, there can be no prosecution if the amount involved is less than ₹2 crores - HELD THAT:- Since evidence of three witnesses out of six, has been already recorded and the case is now fixed in this month before the trial court for recording of the remaining evidence, therefore, the legality of the impugned order is not required to be tested, as the trial of the case has fairly progressed and existence of Circular of 5th July, 2001 is yet to be established. M....... + More
- 2019 (5) TMI 818
Maintainability of appeal - alternative statutory remedy - Penalty for contravention of Section 7 (1)(a) of the FEM 1999 read with Regulation 16(1) (i) & (iii) of Foreign Exchange Management (Exports of Goods and Services) Regulations, 2000 - HELD THAT:- An appeal against the order impugned herein is maintainable before the Special Director (Appeals), O/o the Commissioner of Income Tax (Appeals), Aayakar Bhawan, Delhi. In view of the above, we are not inclined to entertain the present writ petition and dispose of the same by relegating the petitioner to avail alternative statutory remedy in accordance with law.
- 2019 (4) TMI 1088
Cancellation of the Passport - investigation being conducted under FEMA - Request for an alternate mode of examination by video conferencing - HELD THAT:- In the present case, the petitioner is a non-resident Indian and contends that the provisions of FEMA are inapplicable. Notwithstanding the aforesaid contention, Mr. Tripathi, learned Senior Counsel for the petitioner had made a statement before this Court on 14.08.2018 that the petitioner would provide all documents as required by the respondents even though, according to the petitioner, the same are not required to be disclosed. It is not disputed that in compliance with the aforesaid order, the petitioner has supplied all documents that were called for by the ED. This Court had, during the course of proceedings, also pointedly asked Mr. Amit Mahajan, learned counsel for the responden....... + More
- 2019 (3) TMI 550
Refund of amount deposited - FERA - Grievance of the applicant is that the department has not returned the seized cash of ₹ 6,000/, nor refunded ₹ 20,000/deposited by her as per interim directions of FERA Board not release her original title deeds - Held that:- Learned counsel for the department stated under instructions that the department has already initiated steps for refunding such amounts. This application is disposed of with certain directions.
- 2019 (2) TMI 1799
Offence under FERA - violation of provisions of Section 9(1)(b) of FERA - seizure of currency office premises - violation of provisions of FERA solely on the basis of the statement of Ashish Jain recorded on 4.10.1995? - penalty imposed - HELD THAT:- In the present case, neither the Adjudicating Authority (Deputy Director, Enforcement Directorate) nor the appellate authority (Special Director, Appeals) had applied their minds on the question whether the statement made by Ashish Jain was voluntary in view of its retraction on the very next day. In fact, the Tribunal had proceeded on the basis that it was accepted by the Appellate Authority (Special Director, Appeals) that the statement of Ashish Jain had no evidentiary value. This Court is of the view that the statement of Sh. Ashish Jain could not be relied upon as, first of all, it was r....... + More
- 2019 (2) TMI 963
Grant of stay - pre-deposit - interim order granted by the Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS, PEPT, New Delhi-3 - Tribunal failed to consider the income tax returns of the appellant for the year 2018-19, but only noted the income tax returns filed for the years from 1999-2000 to 2002-2003 - Held that:- Without going into the controversy as to whether the appellant had produced the current income tax returns or not, we deem it appropriate that the appellant shall be given one more opportunity to place all the records before the Tribunal, so that the Tribunal can take a decision as to whether the interests of the Revenue stand sufficiently safeguarded on account of the attachment over the immovable property of the appellant, which is stated to be worth of ₹ 3 Crores and as to whether the appellant's financial condition p....... + More
- 2019 (2) TMI 884
Contravention of provisions of Section 9(3) of the FERA Act - violation of FERA - petitioner having not been made aware of the show cause notice, the impugned order passed thereon is exparte and caused grave and serious prejudice to him - Held that:- Various foreign exchange resources of the country and the proper utilization thereof in the interests of the economic development of the country. This Act is now repealed by virtue of a new law namely, the Foreign Exchange Management Act, 1999, but even though repealed, the proceedings under FERA Act can continue. The provisions of the Act enable to carry out searches and confers powers to arrest as well. The violation of FERA is, thus a grave and serious issue. Its strict and stringent provisions enable the authorities to adjudicate into the breaches of the law, and thereafter, if proved, im....... + More
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