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FEMA - Supreme Court - Case Laws
Showing 1 to 20 of 125 Records
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2023 (11) TMI 480
Validity of order of forfeiture of properties u/s 7 of SAFEMA consequent to revocation of the detention order passed under COFEPOSA - as argued that as detention order passed u/s 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [COFEPOSA] has been subsequently revoked/withdrawn as such SAFEMA proceedings would become non est and untenable HELD THAT:- SAFEMA was enacted to provide for the forfeiture of illegally acquired properties of smugglers and foreign exchange manipulators and for matters connected therewith or incidental thereto as such activities were having a deleterious effect on the national economy. Section 2 provided for the application of the provisions of the Act only to the persons specified in sub-section (2) thereof. According to sub-section (2)(b) every person in respect of ....... + More
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2023 (9) TMI 1102
Offences committed under the repealed FERA Act - prosecution for the offences punishable as committed prior to the repeal of FERA - purposes of the prosecution of offences punishable under Sections 56 and 57 of FERA - HELD THAT:- What is material here is sub-section (4) of Section 49 of FEMA, which provides that subject to the provisions of sub-section (3), all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. Sub-section (3) of Section 49 saves the prosecution for the offences punishable under Sections 56 and 57, which have been committed prior to the repeal of FERA, provided the competent Court takes its cognizance within two years from the date of coming into force of FEMA. In view of sub-section (4) of Section 49, for the purposes of t....... + More
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2023 (3) TMI 1074
Forfeiture of illegally acquired properties of smugglers and foreign exchange manipulators - order passed by the competent authority under Section 7 read with 19(1) of the Smugglers and Foreign Exchange Manipulators(Forfeiture of Property) Act - partners of the first appellant, namely, N.A. Yusuf, was ordered to be detained by Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974(hereinafter being referred to as COFEPOSA ) - HELD THAT:- From the evidence which came on record, it could be gathered that out of the investment made by the partners(Appellant nos. 2 to 5) to the tune of Rs.10.20 lakhs, N.A. Yusuf contributed Rs.5 lakhs and Appellant no.2(P.M. Saheeda) and her children have contributed to the tune of Rs.5.2 lakhs each but neither N.A. Yusuf has justified any source from where his capital contribut....... + More
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2022 (8) TMI 1107
Violation of the provisions of the FERA - proceedings to be initiated within a particular period provided under the Statute - As submitted authorized dealer, before permitting the deposits of foreign currency, was required to satisfy himself that the foreign currency is deposited by the NRI Account Holder himself; that the account holder is on a temporary visit to India; and that the account holder is still normally resident abroad - whether High Court has grossly erred in holding that it was for the first time that the stipulation regarding the deposits of foreign currency by the account holder himself, was expressly provided for by Circular dated 31st July 1995 and therefore the Circular dated 31st July 1995 could not have had a retrospective operation? - HELD THAT:- We are of the view that the show causes notices issued in the ye....... + More
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2021 (10) TMI 1131
Pre-deposit requirement qua the petitioner - As petitioner submit that he in no way concerned with the affairs of the company after his resignation on 6-5-2006 much less with the agreement dated 21-6-2006. Further, even the earlier agreement was between the two companies to which the petitioner was not a signatory - HELD THAT:- As in our opinion, for the stand taken by the petitioner, we direct the Appellate Authority to exempt the requirement of pre-deposit as regards this petitioner (M. Umesh), in case he resorts to remedy of appeal in light of the liberty given in terms of this order. In other words, the Appellate Authority shall not insist for pre-deposit requirement qua the petitioner herein, i.e. M. Umesh. Besides, the appellate authority shall not non-suit the petitioner for having filed the appeal beyond limitation as the petitioner was pursuing remedy before the High Court in the first place and thereafter before this Court, after issuance of show cause notice.
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2021 (9) TMI 730
Extension of tenure of Director of Enforcement - extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation - fixing the tenure for a minimum period of two years - procedure prescribed under Section 25 of the Central Vigilance Commission Act, 2003 ( CVC Act ) - Whether there can be extension of tenure of a person who has been appointed as a Director of Enforcement for a period of two years and who has attained the age of superannuation in the interregnum i.e. before the expiry of two years? - HELD THAT:- Government servant shall retire on attaining the age of 60 years. Posts for which there can be extension beyond 60 years have been specifically mentioned in the Rule and there is no dispute that the post of Director of Enforcement is not mentioned in the Rule for which....... + More
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2021 (3) TMI 92
Transaction entered into by a foreign citizen of Indian origin , to deal with real estate in India on certain conditions - transaction (specified in Section 31 of the 1973 Act) entered into in contravention of that provision is void or is only voidable and it can be voided at whose instance - Mandation to get general or special permission of the RBI for transfer or disposal of immovable property situated in India by sale or mortgage by a person, who is not a citizen of India - HELD THAT:- Foreigners should not be permitted/allowed to deal with real estate in India; the peremptory condition of seeking previous permission of the RBI before engaging in transactions specified in Section 31 of the 1973 Act and the consequences of penalty in case of contravention, the transfer of immovable property situated in India by a person, who is no....... + More
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2020 (8) TMI 44
Proceeding against a Director of a company for contravention of provisions of FERA, 1973 - Non-executive Director responsibility for the conduct of business of the Company - notice dated 19.02.2001 was issued by the Deputy Director, Enforcement Directorate to decide as to whether the adjudication proceedings as contemplated in Section 51 should be held against the Directors for contravention - HELD THAT:- The appellant had not submitted any reply to show cause notice dated 19.02.2001 which though was addressed to the Company and all Directors and the reply was sent only by the Company Secretary on 26.03.2001. The representation dated 29.10.2003 was the first representation submitted by the appellant before the adjudicating officer during course of personal hearing. What is said by a person who is called for personal hearing even though....... + More
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2020 (3) TMI 1103
Organisation of a political nature as barred from receiving foreign contributions - Sections 5 (1) and 5 (4) of the Foreign Contribution (Regulation) Act, 2010 and Rules 3 (i), 3 (v) and 3 (vi) of the Foreign Contribution (Regulation) Rules, 2011 as violative of Articles 14, 19 (1) (a), 19 (1) (c) and 21 of the Constitution of India - Guidelines for declaration of an organisation to be an organisation of a political nature not being a political party are found in Rule 3 of the Rules - principal challenge of the Appellant-organisation to Section 5 (1) of the Act is on the ground that the terms activity, ideology and programme are vague and have not been defined in the Act which result in conferring unbridled and unfettered power on the executive. Therefore, the Appellant-organisation contended that Section 5 (1) is violative of Arti....... + More
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2020 (3) TMI 1102
Violation of provisions of Section 10(6) of the FEMA Act - Responsibility of Authorised person - goods had arrived in India, but the Company failed to submit Bill of Entry and did not take delivery of the goods - goods not released and as such kept in bonded warehouse - defence of the appellant that he could not be made responsible for the stated contravention. For, he became the Managing Director of the Company much later i.e. on 22.10.2001 - HELD THAT:- In the present case, the finding of fact is that the import of goods for which the foreign exchange was procured and remitted was not completed as the Bill of Entry remained to be submitted and the goods were kept in the bonded warehouse and the Company took no steps to clear the same. As a result, Section 10(6) of the FEMA Act is clearly attracted being a case of not using the procur....... + More
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2020 (1) TMI 1601
Appellate authority for deciding the appeals filed after repeal of FERA against the order passed under Section 51 of FERA - Appellate forum for deciding the appeals arising out of the order passed under Section 51 of FERA - HELD THAT:- Learned Counsel for the parties are ad idem on the aspect that the issue is no more res integra in view of the judgment in Union of India v. Premier Ltd. [ 2019 (1) TMI 1502 - SUPREME COURT ] which has answered the question in favour of the appellant before us by opining that the appellate forum for deciding the appeals arising out of the order passed under Section 51 of FERA whether filed prior to 1-6-2000 or filed after 1-6-2000 must be the same i.e. Appellate Tribunal under FEMA. The impugned order is set aside and the appeal is restored to the Tribunal.
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2019 (10) TMI 672
Violation of provisions under FCRA, 1976 - foreign contribution received by the respondent-petitioner - HC quashed the FIR - HELD THAT:- The impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegtions made by the appellant-C.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C. The assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent....... + More
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2019 (8) TMI 139
Hawala transactions - Detention order - smuggling of foreign origin gold by a syndicate of persons from UAE to India - the sale proceeds of the smuggled gold were siphoned off to Dubai through hawala. - Offences punishable under Section 135 of the Customs Act, 1962. Whether the orders of detention were vitiated on the ground that relied upon documents were not served along with the orders of detention and grounds of detention? - Whether there was sufficient compliance of the provisions of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act? Whether the High Court was right in quashing the detention orders merely on the ground that the detaining authority has not expressly satisfied itself about the imminent possibility of the detenues being released on bail? HELD THAT:- It is well settled that the ord....... + More
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2019 (4) TMI 1355
Offence under FEMA - writ petition in the High Court against the Union of India and sought therein a writ of mandamus claiming refund of the pre-deposit amount - High Court allowed the appeals, set aside the order of the Tribunal and restored the order of the Adjudicating Authority - Whether the High Court was justified in allowing the appeals filed by the Union of India. HELD THAT:- High Court did not examine the case of the parties in the context of material placed by the appellants, though the Tribunal in Para 29 of its order has considered the said material. High Court should have taken into consideration the said material with a view to decide as to whether it was relevant or/and sufficient, and whether it could justify the appellants case as contemplated under Section 8 of FEMA. High Court seemed to have proceeded on wron....... + More
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2019 (4) TMI 592
Detention orders u/s 3 read with Section 12A of COFEPOSA - orders made during the period of Emergency proclaimed under Article 352(1) of the Constitution of India - grounds of detention were not communicated to the detenu in a language known to him - notice under Section 6(1) of SAFEMA to show cause why properties be not declared to be illegally acquired properties and forfeited to the Central Government under the provisions of SAFEMA - HELD THAT:- In the present case the order of detention under COFEPOSA was passed on 19.12.1974 and the petition challenging the detention was filed on 29.04.1975 i.e. before the proclamation of emergency was issued on 25.06.1975. The detenu was released after the lifting of the emergency. All through, the Writ Petition was alive and pending in High Court and it was disposed of as having become infructuous....... + More
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2019 (1) TMI 1502
Maintainability of appeal before Special Director (Appeals) - proper appellate authority for deciding the appeals filed after repeal of FERA on 01.06.2000 against the order passed under Section 51 of FERA - contravention of Sections 9 (1) (a), 9(1)(c) and Section 16(1) of the Foreign Exchange Regulation Act, 1973 - imports and exports of certain commodities made with two foreign parties, viz., M/s Fingrain, S.A., Geneva and M/s Continental Grain Export Corporation, New York - whether appeal against the order passed by the Deputy Director of Enforcement (Adjudicating Officer) under Section 51 of FERA read with FEMA would lie only to the Appellate Tribunal under Section 19 of FEMA but not before the Special Director (Appeals) under Section 17 of FERA? Held that:- Any appeal filed after 01.06.2000 against the order of the Adjudicating Of....... + More
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2017 (8) TMI 671
Illegally acquired property within the meaning of Section 3(1)(c) of SAFEMA - whether tenancy of a property, ownership of which is acquired by a person to whom the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) applies, will be treated as “illegally acquired property” within the meaning of Section 3(1)(c) of SAFEMA and can be subjected to forfeiture under the provisions thereof? - Held that:- In the present case, it is undisputed that only adjudication which has taken place by the competent authority is that the property was owned by the person to whom the Act applied i.e. against whom the order of detention had been confirmed. The rights of the appellants, who claim to be bona fide tenants even prior to purchase of the property by the person to whom the Act applied, have not been adjudicated upon....... + More
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2017 (8) TMI 574
Disobedience to respond to the summons issued under Section 40(3) FERA - offence under Section 56 of FERA, 1973 - Held that:- This point has come up for consideration before this Court in Enforcement Director and Anr. v. M.Samba Siva Rao and Ors. (2000 (5) TMI 586 - SUPREME COURT OF INDIA). Due to the divergence of opinion of the High Courts of Kerala, Madras on one hand and High Court of Andhra Pradesh on the other, a three Judge Bench of this Court considered the matter and held as clauses (i) and (ii) of Section 56(1) are material for deciding the quantum of punishment and further, there is no reason why the expression “in any other case” in Section 56(1)(ii) should be given any restrictive meaning to the effect that it must be in relation to the money value involved, as has been done by the Kerala High Court. The summons issued under....... + More
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2017 (1) TMI 398
Principle of segregation - Detention order - Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - High Court has come to the conclusion that there were various grounds which formed the basis of the detention order and even if the documents pertaining to one particular ground were not furnished, that ground could be ignored applying the principle of segregation and on remaining grounds the detention order was still sustainable - whether the principle of severability of grounds, which is enshrined in Section 5A of the Act, is not applicable to the case at hand as the detention order was passed on one ground only? - Held that:- Each 'basic fact' would constitute a ground and particulars in support thereof or the details would be subsidiary facts or further particulars of the said ba....... + More
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2016 (6) TMI 341
Offence punishable under Section 56(1)(i) of the Foreign Exchange Regulation Act, 1973 for the alleged contravention of the provisions of Sections 18(2) and 18(3) of the Act - Held that:- The tribunal has arrived at a conclusion that the appellant cannot be held guilty for Section 18(2) read with Section 18(3) of FER Act, 1973 and the advise of the Reserve Bank of India given in its letters dated 21.1.1992 and 18.2.1994 deserve to be accepted as they are totally in consonance with legal provisions. The High Court, without an assail to the order passed by the tribunal, has adverted to the same and opined that it does not subscribe to the view expressed by the tribunal that Section 18(2) and 18(3) of the Act were not applicable to the transaction in question. The High Court could not have done that. We may note with profit that the High Co....... + More
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