|
Advanced Search Options
FEMA - Case Laws
Showing 161 to 180 of 854 Records
-
2019 (3) TMI 1988 - PUNJAB & HARYANA HIGH COURT
FEMA - Offences committed under the repealed Act - HELD THAT:- Section 49 of the FEMA deals with repeal and saving of the Act and the Appellate Board constituted under the Act was dissolved. Sub-section (4) of Section 49 of FEMA made a provision as to how offence committed under the repealed Act shall be governed by and in clause (b) of sub-section (5) of Section 49 a provision is made as to who would be competent to dispose of the appeals pending before the Appellate Board constituted under the Act and the pending appeals were ordered to be transferred for disposal to the Appellate Tribunal constituted under FEMA. There is no provision under Section 49 that if a person feels aggrieved by an order passed in respect of offence committed under the repealed Act, he would be entitle to file an appeal before the Appellate Tribunal constituted under FEMA. That being so, the mere fact that the Adjudicating Authority in order dated 30-3-2017 has prescribed that an appeal shall lie to the Appellate Tribunal for Foreign Exchange or an interim order has been passed by the said Tribunal staying recovery of penalty subject to payment/deposit of 20% of the amount would not enure to benefit of the appellants to assert their claim that the appeal is maintainable before the Appellate Tribunal under SAFEMA, FEMA, PMLA, NDPS, PBPT Act.
We do not find an error much less illegality in the order impugned dated 6-2-2019. So far as challenge to the order dated 30-3-2017 passed by the Deputy Director, Directorate of Enforcement Jalandhar is concerned, the same cannot be challenged before this Court by filing an appeal against first order.
In view of what has been discussed hereinbefore, finding no merit, the appeal fails and is accordingly dismissed in limine. However, nothing stated hereinbefore shall cause prejudice to the appellants to avail appropriate remedy, in accordance with law. In case the appellants prefer an appeal before a Competent Authority/Fora and law prescribes limitation for preferring such an appeal, the appellants would always be at liberty to raise a plea that as they had been pursuing their remedy before the Appellate Tribunal, delay in filing the appeal may be condoned.
-
2019 (3) TMI 1518 - ATFEMA
Offence u/s 3(a) of FEMA - domestic supply of goods in India against amount received in foreign exchange from the overseas buyer - no general or special permission of Reserve Bank dealt in receipt of foreign exchange - Proof of compilation of conditions prescribed under Regulation 12 - HELD THAT:- It is the obligation of the Authorised Dealer to ensure compliance of all conditions before acceptance of documents for negotiations. It is a matter of fact that Letter of credit opened by the overseas buyer was negotiated by the Authorised Dealer against Shipping Bill No. 1862349 dated 30.07.2002, therefore presumption must be that all conditions prescribed under Regulation 12 has been duly complied including the condition with respect to SDF. In absence of any evidence, it cannot be assumed that Authorised Dealer has accepted the shipping documents without SDF. And even no action was taken against the Authorised Dealer if there was no compliance of about SDF.
Once the said stand is taken, the onus is on the on the Directorate that Padmaja was allowed export without filing of SDF, and also documents were negotiated by the Authorised Dealer without SDF.
In the present case, export proceeds to the full extent of value of shipping bill were realised and repatriated and even penalty amount of ₹ 23 Lakhs has been deposited on behalf of Padmaja in case of any breach.
It is a settled principle of law that the procedures have been prescribed to facilitate verification of substantive requirement, as long as a fundamental requirement is met other procedural deviation can be condoned.
As far as the Appellant No. 2 is concerned, Appellant No. 2 guilty although there is no evidence against him. As the burden of proof to show contravention of a particular statutory provision is on the Respondent and not the Appellants. In the impugned order, the understanding between the two set of parties and evidence produced have not been dealt properly.
On August 2018, the Hon‟ble Tribunal desired to know as to whether Shri Gangadharan Manari, proprietor of M/s Padamja Impex has deposited the penalty amount of ₹ 23,00,000 (Rupees Twenty Three Lakhs Only) or not.
Appeals filed by the appellants are allowed. The impugned order against the appellants is set-aside.
-
2019 (3) TMI 1517 - ATFEMA
Violation of S.18 of the FERA - non-recovery of the export proceeds relating to various items of exports made to Iraq, USSR etc. - waiver applications pending - penalty imposed on the Appellant Company for the alleged violation - personal penalty on directors - Held that:- No penalty could be imposed in respect of outstanding recovery from Iraq for which extension of time had already been granted and the extended time was not yet over. No penalty could also have been imposed for outstanding amounts from other 5 countries in respect of which waiver application was pending.
The appeal filed in the appellant-Hindustan Lever Ltd. is allowed in the light of above said facts.
Personal penalty on directors - As mentioned a penalty of ₹ 25 Lakhs was also imposed in respect of each of the 3 Directors - NO PENALTY COULD BE IMPOSED ON THE DIRECTORS The penalty of ₹ 25 Lakhs each imposed in respect of the 3 Directors are also liable to be set aside.
Firstly, the appellants have filed an affidavit in this regard. In para 5 of the said Affidavit, at pg. 4 it is clarified that the 3 Directors were not in-charge of Exports. Mr. Buckle the 3rd Director was not even a Director during the relevant period. (He took charge of the office with effect from 1.1.93 when the exports are within the period 1982 to 1991.) (See para 3(i) at pg. 2 of the said affidavit). The details regarding the other two Directors are also set out in the said Affidavit.
In the Show Cause Notice dated 25.11.1993 only the names of the aforesaid 3 Directors are mentioned. Their names are included only on account they being Directors. No further allegation or statement is made as to ‘how’ they were in-charge and were responsible to the Company for the conduct of business of the Company in relation to such exports and the recovery of the amounts in relation thereto, as contemplated under Section 68.
It is settled law that mere repetition of the language of the Section in the Show Cause Notice is not enough. Unless it is specifically stated as to how the said Directors are responsible and in-charge of, as contemplated in Section 68. In the light of settled law, the impugned order with regard to penalty imposed to three directors is also set-aside. Appeal allowed.
-
2019 (3) TMI 824 - ATFEMA
Offence under FEMA - appellant had without any general or special permission of RBI, received amounts ₹ 2,47,99,350/- in India, otherwise than through an authorised person, by order or on behalf of his friend Madan, a person resident outside India - penalty imposed - HELD THAT:- From the documents/statements the Investigating Officer became aware of the identity of various persons from whom Shri Harish Kumar had been receiving payments in India, under instructions of his friend Madan, residing in USA, who was earlier residing in Mohali. In view of other certain searches were conducted and a number of persons examined and their statements recorded under FEMA, which brought out corroboratory evidence viz-a-viz the facts as stated by Shri Harish Kumar in his afore-mentioned statements.
Shri Harish Kumar later on sought to retract from his abovementioned statements, by way of a letter sent during the course of investigations, besides by way of submissions made during the course of personal haring including in the form of Affidavits, both his as also of one other person, in which Affidavit, it is claimed that amount totaling to ₹ 26,25,000/- was received by Shri Harish Kumar from the said person (Harchand Singh) on interest for using the same in his business of Goldsmith.
It is correctly found in the impugned order that from the seized material and the above-mentioned statements, and find that the said statements, when read with in conjunction with the seized documents/material, brings out the facts that the contention of the Noticee that he was forced to make inculpatory statements is not correct.
Not only that these statements are in the form of explanation to the seized documents, it is also a matter of records that the said statements were recorded by Shri B.C. Mahey, Assistant Director and not by Shri Balwinder Singh (the then Chief Enforcement Officer), as alleged by the Noticee.
Therefore, as agreeing with the finding arrived in the impugned order that it is established beyond a reasonable doubt that during the years 2002 and 2003, the said Shri Harish Kumar @ Rinku without any general or special permission of Reserve Bank, received amounts totaling to ₹ 2,47,99,350/-, in India, otherwise then through an authorized person, by order or on behalf of his friend Madan, a person resident outside India, and thereby he has contravened the provisions of Section 3 (c ) of the Foreign Exchange Management Act, 1999 - the seized amount of ₹ 21,75,000/- was the amount involved in afore-mentioned contraventions of the provisions of FEMA. It is also a matter record that the appellant had retracted his admission after the expiry of almost more than four years. The said period is long period of time. It is after thought thus has no value in the eyes of law.
With regard to the penalty of ₹ 25,00,000/- is concerned, it has come on record that appellant is not in a position to deposit the said amount. The appellant is suffering from undue hardship. The financial condition of the appellant is very weak. He has been residing in House in Punjab, on rent from the last many years. On the perusal of the affidavit and a copy of the deed of conveyance filed therewith makes it abundantly clear that the father of the appellant Late Shri Kanwar Bhan had been residing in the aforesaid rented house and after the death of his father the appellant has been residing in that house. He is an unemployed person living with the generosity of the Management of the nearby Gurudwara where he and his family are having their daily meals in return of his help to the distribution of free meal to the devotees. He does not have any income who is not an income tax payee and does not have any other financial resources to make the pre-deposit of the penalty.
There is no material on record on behalf of the respondent to show that the appellant is not suffering from the undue hardship. It appears from the record, there is no contrary evidence available. The appellant is exempted to deposit the penalty amount. The same is waived in view of the peculiar facts of the present case. The impupgned order is modified only to this extent of penalty component.
-
2019 (3) TMI 823 - ATFEMA
Offence under FEMA - transaction in foreign exchange undertaken by the Varanasi branch with another company holding no license from the RBI to conduct the said business of money exchange - penalty imposed - separate license to companies and all its branches - HELD THAT:- Considering that the RBI grants license to the company as well as its branches separately, a fact which was reiterated by the learned counsel for the appellant, RMEL, Varanasi cannot take shelter under the main RMEL company located at Mumbai.
From the emails it is clear that the consignment was sent from Varanasi. It belies common sense that if the transaction had been undertaken by the Lucknow branch as the appellants have tried to argue at one stage then why should the money/consignment/package be not transferred from Lucknow to Cochin their hub and why carry it to Varanasi and then send it to Cochin. Even the statement of Shri Sandeep Kumar Srivastava, State Head, Uttar Pradesh who reported to the zonal manager confirms that the consignment was transferred from Varanasi directly through Jet Airways via AWB 58979725306 to Cochin.
In the present case, the Varanasi branch was not authorised for such dealings but nevertheless they undertook the same. Section 10(4) are the duties prescribed for the authorized person which in this case is not relevant as Varanasi branch is not an authorized person. To that extent, the RMEL, Varanasi branch has contravened the provisions of Section 3(a) of FEMA, 1999.
With regard to the zonal manager, Mr. Dasgupta, the emails which have not been denied by him shows his involvement and culpability. He was very much in the knowledge about the whole transaction and the way it has been undertaken. Under the provisions of Section 42(2) of FEMA, he will be therefore deemed to be guilty of the contravention.
The appellants in the present two appeals are liable to penalty under Section 13 of FEMA, 1999. But onsidering the case in its totality and the contraventions, hold that the penalty levied has been on a higher side. Reduce the same to ₹ 10,00,000/-(Ten lakhs only) for RMEL Varanasi, and ₹ 1,00,000/-(One Lakh only) for Shri Souvik Dasgupta.
-
2019 (3) TMI 550 - BOMBAY HIGH COURT
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 2017 - PUNJAB AND HARYANA HIGH COURT
Validity of SCN as being time barred having been issued after more than 14 years from the date of last export and realization of export proceeds - HELD THAT:- A perusal of the writ petition show that the petitioners have not even submitted any reply to the aforesaid show cause notice. After hearing learned counsel for the petitioners, without going into the merits of the controversy at this stage, we dispose of the present writ petition by relegating the petitioners to file a detailed and comprehensive representation raising all the pleas as raised in the present writ petition before respondent No.2 by way of reply to the show cause notice dated 15.06.2018 (C) within a period of one month.
As directed that in the event of a representation being filed by the petitioners within a period of one month from the date of receipt of the certified copy of the order, the same shall be decided by respondent No.2 in accordance with law, by passing a speaking order and after affording an opportunity of hearing to the petitioners within a period of next one month from the date of receipt of the representation.
-
2019 (2) TMI 1799 - DELHI HIGH COURT
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 retracted on the very next day. And, secondly, the statement was very vague and bereft of any particulars, inasmuch as, it did not name or describe any person from whom funds had been received and whom the said funds had been distributed to. As noticed above, neither the adjudicating authority nor any of the appellate authorities, including the Tribunal, had applied their minds as to whether the said statement was voluntary or not. Thus, the question whether the appellant could be held guilty for violation of provisions of Section 9(1)(b) of FERA, on the sole basis of the statement of Sh. Ashish Jain, must be answered in the negative.
Whether there is any material on record to establish that the appellant was guilty of violation of provisions of Section 9(1)(b) of FERA if the statement of Sh. Ashish Jain ? - Clearly, the answer to the above question must also be in the negative as there is no material whatsoever on record to establish the same. None of the orders of the authorities below, namely, the Adjudicating Authority, the Appellate Authority or the Tribunal refer to any cogent material to substantiate the allegation of the commission of an offence under Section 9(1)(b) of FERA.
This Court is of the view that confiscation of the amount of ₹ 7,95,000/- from the office of the appellant is unsustainable. Consequently, the present appeal must be allowed. The order dated 17.02.2014 passed by the Adjudicating Authority (Deputy Director, Enforcement Directorate); the order dated 24.09.2014 passed by the Appellate Authority (Special Director, Appeals); and the impugned order passed by the Tribunal are unsustainable and are, accordingly, set aside.
The amount seized from the premises of the appellant are liable to be returned to the appellant.
-
2019 (2) TMI 1039 - ATFEMA
Offence under FEMA - Penalty imposed in exercise of the powers conferred u/s 13(1) of the Foreign Exchange Management Act, 1999 - HELD THAT:- The term “bona fide” would be used in contradistinction with “mala fide”; i.e., where an activity is not “mala fide”, it would be “bona fide”. A business activity would be “mala fide” if the business activity itself is “fraudulent” and conducted with a fraudulent intent as in the present case, RLL was engaged in bona fide business activity for exploring opportunities in steel and other specified sectors globally including India.
The appellants have made out a strong prima-facie case. There are many issues which have not been decided strictly as per law and facts of the matter in the impugned order. The appellants have raised many important legal issues which have to be gone into.
The balance of convenience is also in favour of the appellants. The issue of penalty (being totally disproportionate) as raised by the appellant i.e. grossly arbitrary has also resulted in causing irreparable harm loss and injury to the appellants are to be considered at the time of hearing the appeal on merit. The appeals are pending for the last more than 4 years so as the stay applications. The same have been adjourned one on reason or the other. The appeals could not be decided on merit as the respondent was insisting that before deciding the appeals, the pending application under the provisions of section be decided at the first in stance.
Even otherwise the earlier tribunal is merged with the present tribunal in July, 2017 and many files were not transferred on time.
In order to strike out the balance between the parties at this stage, direct that without prejudice, the appellants shall deposit ₹ 2 Crores lump-sum with the respondent within eight weeks from today. The hearing of the appeal is expediated. The appeals are listed on 1st July, 2019. All pending applications are disposed of accordingly.
-
2019 (2) TMI 963 - MADRAS HIGH COURT
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 precludes from making a predeposit.
For such a reason alone, we allow this appeal, set aside the order of the Tribunal and remand the matter to the Tribunal for a fresh consideration.
-
2019 (2) TMI 884 - BOMBAY HIGH COURT
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, impose penalties. That is how the impugned order proceeds. The impugned order does not show that the petitioner was duly served, but deliberately did not appear or avoided to appear. Having received the show cause notice and related papers, he did not file any reply. He avoided even the service of the proceedings. The above is not the position emerging from the order itself. Rather the order is passed after observing that certain attempts to serve the petitioner were made but having not found him at the premises of one Hasmukh Shah, the order was passed in his absence. Once the factual position as stated in the Writ Petition is undisputed, then, this Writ Petition must succeed.
We allow the Petition by quashing and setting aside the impugned order.
-
2019 (2) TMI 214 - ATFEMA
Violation of provisions of section 4 of the Foreign Exchange Management Act, 1999 and Regulation 3 of the Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulations, 2000 - inheritance of foreign exchange - Held that:- There is no dispute that the appellant being a person resident in India has inherited this amount as per the voluntary settlement deed executed by the settlers being person resident outside India - As per settled law, the word inheritance has to be given a wider meaning here. The word inheritance here cannot be limited to mean the asset acquired by a Human being/ natural person upon the death of a natural person because as per section 2(v) of the Act a ‘person resident in India’ includes a legal person. Thus, the property passing upon death of a person being resident outside India to a person resident in India whether the person resident in India is a natural or a legal person.
As per Section 9(e) of the Act also if the foreign exchange has been acquired by way of gift or inheritance then even in that situation the provision of section 4 shall not apply. The reserve bank has not prescribed any limit for holding the foreign exchange in case the foreign exchange has been acquired by gift or inheritance - even if for a moment assuming that the provision of section 6(4) and section 9(d), (e) of the Act are not applicable in the instant case even than the appellant should not be held guilty for contravening the provisions of section 4 of the Act
The appellant should not be considered to have violated the provisions of section 4 of the Act and Regulation 3 of the Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulations, 2000 in view of peculiar facts and circumstances of the present matter - appeal allowed - decided in favor of appellant.
-
2019 (1) TMI 1502 - SUPREME COURT
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 Officer passed under Section 51 of FERA in the proceedings initiated under FERA would lie before the Appellate Tribunal under Section 19 of FEMA.
The legislature did not intend to make a distinction between the two appeals for their disposal by two different appellate authorities under FEMA only because one appeal was filed prior to 01.06.2000, therefore, it will lie before the Appellate Tribunal whereas the other appeal which was filed after 01.06.2000 though against the similar order, it will lie before the Special Director (Appeals). In our view, there does not appear to be any justifiable reason to make such distinction for filing of appeals filed against the similar order passed under FERA before two different appellate authorities under FEMA - this intention of the legislature is strengthened when we read Section 49 (5)(b) of FEMA and Section 81(c) of FERA.
So far as Section 49(5)(b) of FEMA is concerned, it specifically provides that the appeals filed under Section 52 (2) of FERA against the order passed under Section 51 of FERA will be decided by the Appellate Tribunal under FEMA - So far as Section 81(c) of FERA, 1973 is concerned, it deals with Repeal and Saving of FERA, 1947. Clause (c) of Section 81 specifically provides that all the appeals filed under Section 23 of FERA, 1947, whether pending on the date of Repeal or/and those filed after the repeal of FERA, 1947, shall be disposed of by the Appellate Board constituted under FERA, 1973.
Since Section 49(5)(b) of FEMA is not identically worded on the pattern of Section 81(c) of FERA, that itself would justify that the legislature intended to provide two appellate authorities in FEMA for filing two types of appeals arising out of a similar order - it is not possible to accept the submission of learned counsel for the respondents(assessees) that by interpretative process this Court can uphold creation of another appellate authority for the disposal of the appeals filed against the order passed under Section 51 of FERA after 01.06.2000 which do not fall under Section 49 (5)(2) of FEMA.
There is no reason as to why the same legislative intent while interpreting the provisions of FERA, 1973 and FEMA, 1999 is applied for deciding the identical question now arising in the case.
The appellate forum for deciding the appeals arising out of the order passed under Section 51 of FERA whether filed prior to 01.06.2000 or filed after 01.06.2000 must be the same, i.e., Appellate Tribunal under FEMA - the appeal filed by respondent Nos. 2 to 4 against the order dated 05.12.2003 passed by Deputy Director of enforcement under Section 51 of FERA will lie and was, therefore, maintainable only before the Appellate Tribunal under Section 19 of FEMA - appeal allowed.
-
2019 (1) TMI 980 - ATFEMA
Stay of penalty imposed - Contravention and allegations against the appellant u/s 6(3)(d) of FEMA - penalty imposed - delay in settlement of import dues - Held that:- The Appellants have prima facie demonstrated that there have been no violations of the provisions of FEMA, the Rules, Regulations and the Master Circular on Imports. Without prejudice to any of the aforesaid, and assuming without admitting that there was a violation, even then the RBI regularized the same by granting the permissions to settle the dues specifically from “FEMA Angle”. The Appellant has also able demonstrated the factual conditions which led to the delay in settlement of import dues.
The RBI letter expressly states that the permission was issued from foreign exchange angle under FEMA. The limitation of the permission was only in respect of any other applicable laws other than FEMA. The Respondent is admittedly not seeking to impose penalty for alleged violation of any other law. In view of the aforesaid, the contentions of the Respondent especially at Para 16 are unsustainable.
In this regard, the submissions of the Appellants in their Appeals, Stay Applications and the common Synopsis are reiterated.
Prima facie it is of the view that the respondent has no jurisdiction to reinterpret the terms of the agreement between Google Ireland and Google India.
Undue hardship that will be caused to the Appellants if they are made to make a deposit of any part of their respective penalty which is without basis in law and in any event highly disproportionate to the bona fide actions of the Appellants.
In the present case, the RBI has specifically allowed the settlement of dues from FEMA angle
In the light of the prima facie has been made by the appellant and the appellant will suffer hardship if the appellant is asked to deposit the penalty amount. After having through the facts and material placed on record, I am of the opinion that the chances of success of appeal are more than the failure of appeal. Thus, the prayer is allowed. M.P is disposed of. There shall be a stay of operation of the impugned order till the final decision of appeals.
-
2019 (1) TMI 190 - ATFEMA
Approval of RBI for transfer of technology in excess of USD 1,00,000 - rectification of the advance payment - invocation of provisions of FERA - Held that:- The whole case hinges on the RBI’s approval for the excess amount not being available. From the RBI’s letter dated 18.11.2002, it is apparent that the RBI was seized of the matter and had not rejected their case. It would be in the fitness of things to have consulted the RBI before the impugned order was passed more so because the genesis of the case was an information received from the RBI.
The matter is remanded back to the original authority to get the necessary response/reply from the RBI and pass a fresh speaking order after giving the appellants an opportunity of being heard.
-
2019 (1) TMI 26 - MADRAS HIGH COURT
Penalty under FEMA - Tribunal jurisdiction allowing waiver of deposit of penalty - Tribunal directed the appellant to deposit a sum of ₹ 12,00,000/-, which would amount to 25% out of the total amount ordered by the adjudicating authority by way of penalty - Held that:- We are of the opinion that the direction already given in this appeal, dated 05.09.2018, would safeguard the interest of the Department, since the appeal itself has been directed to be listed by the Appellate Tribunal on 27.02.2019.
Thus the appeal stands allowed and the order passed by the Tribunal is modified to the effect that the appellant shall pay a sum of ₹ 5,00,000/-, which the appellant has already paid. Consequently, the remaining amount of penalty, levied on the appellant, shall remain stayed till the disposal of the appeal by the Appellate Tribunal.
-
2018 (12) TMI 1765 - ATFEMA
Violation of FEMA - Appellant Company has failed to submit (Bill of entry) documentary evidence for import of goods in respect of the advance remittance through HSBC Bank - penalty imposed on managing director - HELD THAT:- It is admitted by the respondent that the Company has used the foreign exchange for the declared purpose in terms of section 10 (5) by assuming that non-receipt of the goods would mean use of foreign exchange for a wrong purpose. Once the foreign exchange has been used by the Appellant Company for the declared purpose and if said purpose is not achieved it would not lead to the inference of not using the foreign exchange for the purpose for which it was acquired.
Invoking of Regulation 6 of the Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulations, 2000 is without any substance as the same applies to Resident Person, who has acquired or purchased foreign exchange for any purpose mentioned in the declaration to the Authorised Dealer in terms of Section 10 (5) of the Act and does not use it for the said purpose and is enjoined to surrender such foreign exchange or unused portion thereof back to the Authorised Dealer within 60 days. In the Show Cause Notice, the provisions of the law have also been engrafted .
The Counsel for the respondent has referred Section 11 of FEMA contending that the exemption granted by RBI is basically seeking compliance are not otherwise which has no substance as for alleged compliance of filing of Bill of Entry, RBI had granted exemption, hence there was no scope of compliance. Even more, reading of Section 11 FERA, 1999 in the manner is correct. In fact, it is an enabling section empowering RBI to issue directions to the Bankers/Authorised Persons for the purpose of securing compliance of the provisions of FEMA. The said section goes in consonance with the judgment of the Hon‟ble Supreme Court in the case of LIC versus Escorts, [1985 (12) TMI 289 - SUPREME COURT] wherein held that Reserve Bank of India is the Custodian General of the foreign exchange of the country and what is permitted/exempted by RBI cannot be questioned, by any person and directions are given by RBI in terms of section 11 of FEMA in consonance with the said law laid down by Hon‟ble Supreme Court.
The respondent admittedly not denied the fact that the vendor was declared bankrupt who has also not issued the 60 days notice to the appellant about it, otherwise the appellant would have approached to recover the amount as of law. Even if the contention of the respondent is accepted, the respondent ED is not able to get any additional/independent evidence against the appellant apart which was already available with RBI.
As asserted by the respondent that inquiries were made with the Company to find out the person incharge and responsible during the relevant period and the Company vide communication dated 14/10/2014 informed that Mr. S. Jain (Head of Finance) was the person incharge during the impugned period, who had already left the Company. The said Mr. S. Jain has not been arraigned in the show cause noticee and instead the Managing Director, who is appointed on 27/08/2015 as Managing Director of the Company, a citizen of South Korea was arraigned in vicarious liability in terms of Section 42 of FEMA. The Form DIRE-12 for appointment of the Appellant No. 2 as Managing Director. The present Managing Director became Managing Director on 27/08/2015 and was not the person in-charge of and responsible to for the conduct of the business of the Company, which was duly informed to the Respondents during the course of investigation but the Respondent chosen to arraign the new Managing Director with vicarious liability. Therefore, the notice and the penalty imposed on the Managing Director is without any valid reason.
Allegations against the Company and the order passed against the Company is liable to be set aside. Once Company is not liable, as aforesaid, there is no scope of imposition of penalty on the Managing Director as the precondition for imposition of penalty in vicarious liability is, if the company is found guilty.
-
2018 (12) TMI 445 - ATFEMA
Gross violation of the principles of natural justice - Dispensation of the pre-deposit - Penalty imposed - whether principles of natural justice was followed or not? - Held that:- Innumerable opportunities have been given to the appellant for appearing/arguing his case and examining the witness but he failed to avail the same. He either did not appear or on the few occasions where he did appear before the adjudicating authority he took adjournment on some plea or the other. We agree with the learned counsel for the respondents that justice is qua both the parties and we do not find any violation by the adjudicating authority in this regard.
Therefore, do not see any reason to grant them the dispensation of the pre-deposit. They have not pleaded anything either on merits of the case or on hardship even when specifically asked by me. With regard to the judgments quoted by the counsel for the appellant on the principles of natural justice it goes without saying that these principles are the pillars of justice and there is no denying these judgements. However, the facts of the case has to be seen to come at a conclusion whether there is a denial of these principles or not. The discussions and findings in the previous paras show that the principles have been fully followed by the adjudicating authority.
Interests of justice would be served if the appellant is directed to deposit 50 per cent of the total penalty (covering all the four appeals as above) within a period of two months from today.
-
2018 (12) TMI 444 - ATFEMA
Contravention of FERA underhand foreign exchange - Loose sheets found in the house of the main accused Shri Darshan Singh and the statement of the appellant - Held that:- There is no evidence to that effect on record. In fact, the appellant in his statement before the DRI and which finds a mention in the impugned order has not stated that the alleged Darshan Singh was in any way involved in foreign exchange transactions. The so-called loose sheets recovered from the residence of Shri Darshan Singh does not establish that the appellant had received or given any money in contravention of FERA. There are no statements or any other evidence which has been produced by the adjudicating authority to prove the involvement of the appellant in receipt or making payments of foreign exchange. Holding of Indian currency or dealing with it is not a crime and if there is a violation of any other law like the income tax etc. that would be dealt with by the respective authorities. The appeal is accordingly allowed.
-
2018 (11) TMI 1672 - APPELLATE TRIBUNAL FOR SAFEMA, FEMA, PMLA, NDPS & PBPT ACT AT NEW DELHI
Stay petition - pre-deposit orders - HELD THAT:- With regard to undue hardship he pleaded financial hardship for all. However, the ITR produced by him shows the financial conditions of all as comfortable except for M/s. Queen Forex Pvt. Ltd and M/s. Cheap Cloth Store whose financial status as noticed from their Income Tax Return for the years 2017-18, 2018-19 are not good.
Hence Shri Rajinder Singh Duggal, Shri Vishal Arora and Shri Sunil Gupta are directed to pre-deposit the entire amount as per the impugned order. The pre-deposit with respect to M/s Queen Forex Pvt. Ltd and M/s Cheap Cloth Store is stayed until further order.
All the deposits are to be done within a period of five months from today.
............
|
