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FEMA - Case Laws
Showing 201 to 220 of 854 Records
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2018 (7) TMI 446
Validity of show cause notice - Held that:- It appears from the provisions of the Act of 1999 that, the authorities can invoke the provisions of Section 16 for contravention of Section 13 of the Act of 1999, independent of exercise of powers under Section 37 of such Act. Apparently, the authorities have invoked Section 16 for the alleged contravention of Section 13 of the Act of 1999. At this stage, it would be premature for the writ Court to arrive at a finding that, the authorities have no material before it to invoke such provisions assuming that, the exercise of powers under Section 37 of the Act of 1999 remains inconclusive and that, such exercise did not bring forth any materials in support of the case of the authorities. It is for the adjudicating authority envisaged under Section 16 of the Act of 1999 to arrive at such a finding.
The petitioners have replied to the impugned show cause notice. It has dealt with the show cause notice in detail. Therefore, it would be premature on my part to arrive at a finding that, the petitioners are not aware of the charges made against it. In any event, it would be open for the petitioners to contend such ground before the adjudicating authority.
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2018 (6) TMI 1492
Powers of investigation in relation to the contraventions of the FEMA - Power to compound contravention - Power of Reserve Bank to compound contravention - Held that:- we are in agreement with the petitioner that if the Enforcement Directorate is of the view that the compounding proceedings relate to a serious contravention suspected of money laundering as in this case, then, this court is not prevented from seeking appropriate clarifications from the Enforcement Directorate with regard to presence or availability of material in its possession before it forms the view. In our opinion, the use of the word 'view' hardly makes any difference. Eventually, whether a view can be equated with an opinion or not in the light of the far reaching consequences, the Enforcement Directorate would have to satisfy this court that there is some material available with it, based on which, it communicated to the RBI its view as in this case of serious contravention suspected of money laundering. Thus, there is a broad agreement that this court, in exercise of its powers of judicial review, can seek such answers and clarifications from the Enforcement Directorate.
Course adopted by the RBI and its remittance of the proceedings straight away to the adjudicating authority can be questioned by the applicant seeking compounding of the contravention under the FEMA, by making an application to the RBI. Thus, the applicant invoking the RBI's power of compounding can then approach a court of law and challenge both, the refusal or reluctance on the part of RBI to proceed further as also the Enforcement Directorate's communication or view to the aforesaid effect. If that is the constitutional safeguard and protection ensured to every aggrieved applicant, then, it is not necessary to declare the proviso unconstitutional.
We agree with Mr. Dwarkadas that no interpretation which totally takes away the power to compound contravention vesting in the RBI be placed on the proviso. We must, on a harmonious and complete reading of the statutory scheme, together with the rules, hold as above and that would ensure that the contravention can be compounded by resort to section 15 and the requisite rules by the RBI. It is only when a situation of the above nature is faced, then, the applicant seeking compounding of the contravention may invoke the powers of judicial review to strike down the actions of the statutory authorities.
In no case, the RBI can probe or question the sufficiency or adequacy of the materials regarding the view of the Enforcement Directorate, but must leave the matter to the applicant seeking compounding to workout his/her remedies. That is how we can ensure that the proviso does not become a weapon or tool of unbridled harassment nor will it allow the misuse of the power conferred in the Enforcement Directorate. It is precisely to rule out such exercise of power that we have allowed the view of the Enforcement Directorate to be tested in exercise of our powers of judicial review.
It is a right at best to make an application seeking compounding of the contravention, but beyond that, the applicant cannot insist on an order of compounding contravention, as prayed by him, to be passed. The matter is left to the Compounding Authority's discretion and if that discretion is not exercised reasonably, the applicant has a legal remedy available to him/her to approach a court of competent jurisdiction questioning that action of the RBI. Hence, if the exercise of the right to seek compounding of the contravention is controlled and regulated by the statute, then, we cannot agree with Mr. Dwarkadas that the intervention as envisaged by the proviso is unconstitutional or ultra vires the parent Act.
While upholding the constitutional validity and legality of the proviso, particularly by reading it in the manner noted above, we are in agreement with Mr.Dwarkadas that in the facts of this case, the RBI was not bound to put an end to the compounding proceedings. We are of the opinion that the compounding proceedings initiated vide the compounding applications of the petitioner and pending before the RBI should proceed, but strictly in accordance with law.
Thus, the above discussion concludes this judgment. Rule is made absolute by quashing and setting aside the communication dated 1st December, 2017 and further directing the RBI to consider the compounding applications in accordance with law uninfluenced by the communication of the Enforcement Directorate dated 1st December, 2017 or any prior letters/communications, which are quashed and set aside by this judgment
We also proceed to direct the RBI to render the necessary guidance to the petitioner in the matter of compounding of the contraventions under the FEMA. Since it was clearly stated before us by the RBI that it is presently inhibited in considering the compounding applications or proceeding to decide the same in view of the communication/letter of the Enforcement Directorate, then, as a result of quashing of the same, the RBI is free to proceed and decide the same.
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2018 (6) TMI 1491
Offence under FEMA - Person deemed to be guilty of contravention alleged against AEL. - Sh. Rajesh S. Adani resposibility for the conduct of business of AEL - Held that:- Letters and conduct goes to show that Sh. Rajesh S. Adani is covered u/s 42 of FEMA, 1999 being responsible for day to day affairs\business activities of AEL as Managing Director. All the aforesaid actions of Sh. Rajesh S. Adani justified the findings in the impugned order therefore it is held that the Adjudicating Authority is correct in holding that Sh. Rajesh S. Adani is the person incharge and responsible for the conduct of business of AEL and shall be deemed to be guilty of contravention alleged against AEL.
Question of retrospective operation of section 13 of FEMA, 1999. Admittedly the present proceeding has been initiated after coming into force of FEMA, 1999 and various regulations there under. If the violations are proved then penal provisions have been provided under section 13 of FEMA, 1999. Therefore, question of retrospective operation of section 13 of FEMA, 1999 does not arise. Hence, we do not subscribe to the said contention of the appellants. Accordingly, this contention of the appellants are not legally valid hence rejected.
The Adjudicating Authority in exercise of power u/s 13 of FEMA, 1999 has imposed consolidated penalty of ₹ 4, 00,00,000/- (Rupees Four Crore only) on AEL and a penalty of Rs, 1,00,00,000/- ( Rupees One Crore only) on Sh. Rajesh S. Adani in respect of the contraventions of the provisions section 6(3)(a) r/w the relevant Regulations. Further A sum of ₹ 10,00,000/- (Rs. Ten Lakhs only) has been imposed on AEL and a Penalty of ₹ 2, 50,000/- (Two Lakh Fifty thousand only) on Sh. Rajesh S. Adani for violation of provisions of Section 8 of FEMA,1999 r/w with relevant Regulations for non- repatriation of USD 2,71,293/-. Adjudicating Authority has imposed consolidated penalty on the ground stated in second para of the last but one page of the impugned order.
The impugned judgment of the Securities appellate Tribunal has set a serious wrong precedent and the powers of the SENBI to impose penalty under Chapter VIA are severely curtailed against the plain language of the statute which mandatorily imposes penalties on the contravention of the Act/Regulations without any requirement of the contravention having been deliberated or contumacious. The impugned order sets the stage for various market players to violate statutory regulations with impunity and subsequently plead ignorance of law or lack of mens-rea to escape the imposition of penalty. The imputing mens rea into the provisions of Chapter VI A is against the plain language of the statute and frustrates entire purpose and object of introducing Chapter VI A to give teeth to the SEBI to secure strict compliance of the Act and the Regulation.’
The materials placed before us are very much clear that the AEL started the setting up of AGL, Mauritius, WOS of AEL with the permission of the RBI to carry on trading business in marine products, Agro based products, Plastics, PVC goods, Shoe polish etc. by virtue of RBI approval dt. 07.08.1996. The WOS at Mauritius started its operation in 1997 but instead of doing trading business as aforesaid it started investment by way of setting up of step down subsidiaries at Dubai and Singapore and in setting up a Joint Venture Company. The AEL had mis-declared about the non-pendency of investigation in the ODA form and also has not repatriated a sum of USD 2,71,293/- accrued to its WOS, Mauritius on liquidation of joint venture company namely Adani-Wilmar (Singapore) Pvt. Ltd. The intention of AEL was clear and deliberate leading to contravention of various provisions of law under FEMA,1999 and Regulations their under as held in earlier paragraphs.
Taking into consideration the amount involved in the contravention, the consolidated penalties imposed on the appellants are confirmed even though it is on the lower side as there is no appeal filed by the ED challenging the quantum of penalties.
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2018 (6) TMI 677
Contravention of the RBI instructions - remittance for the one share of Mr. Leonid Beyzer had not come in as a foreign direct investment nor had it been made as a debit from his NRE/FCNR account maintained with an authorised dealer/authorised bank - Held that:- The appellants are not disputing the charge but have stated that Mr. Leonid Beyzer had transferred the above remittances from his personal account to the account of the company i.e. M/s. True Axiz Resorts Pvt. Ltd. during the period 19.03.2005 to 02.12.2005. Legal requirement of the payment being made from the NRE/FCNR account has been flouted. The NRO account is a Non Resident Ordinary Rupee account while the NRE is a Non Resident External Rupee account. Similarly the FCNR is a Foreign Currency Non Resident Account, and hence they are principally different types of account and if there is a stipulation for payment from only one type of account, not adhering to the same would tantamount to the breach of the legal requirements. Hence, the adjudicating authority’s order is correct and is upheld.
Not complied with the RBI notification requiring them to file the report within the stipulated period of 30 days - Held that:- There is a foot note in the letter which states from RBI that “this acknowledgment shall not be deemed or construed in any way as approval by the Reserve Bank for investment in the company, nor does it certify the correctness or completeness of Form FC GPR from the company. This acknowledgment is only for the purpose of having received Form FC GPR from the company. Reserve Bank reserves its rights to call for any further detail from the company including any documents it may deem fit as well as to return the Form FC GPR to the company in view of any discrepancies found therein”. The appellants have not been able to produce any final decision in this regard so far. It is therefore apparent that the RBI has still not given them the clearance/permission. Accordingly, the charge against the appellants stands
Mr. Leonid Beyzer had not taken prior approval of the Government of India inspite of having investment in another company in the same sector - Held that:- In the present case, it has not been alleged that Mr. Leonid Beyzer is either a collaborator or proposes to acquire the entire shareholding of M/s. True Axiz Resorts Pvt. Ltd. It is an admitted fact that he only has one share in the company the rest being entirely held Mr. Valiulin Rashid. Hence, find the appeal on this ground a valid appeal and reject the impugned order to this extent.
Lands acquired were all agricultural land and hence were not eligible for investment under the automatic route of foreign direct investment - Held that:- Referring to List of activities or items for which automatic route of Reserve Bank for investment from persons resident outside India is not available what is prohibited is the activity of ‘agriculture’. It nowhere specifies any stipulation or condition relating to agricultural or non- agricultural land. That the appellants were licensed/permitted to undertake activities relating to tourism has not been disputed. It has not also been alleged that they are seeking to indulge in the activity of agriculture. Hence, stretching this stipulation to hold them liable for violation as they possess agricultural land is not within the scope of the Notification 20/2000 dated 03.05.2000. To that extent, I do not find any contravention with regard to the properties in question in so far as it relates to this particular Notification. Accordingly, I hold so.
Levy of penalty confirmed - confiscation of the properties itself is too harsh and therefore set it aside
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2018 (6) TMI 389
Validity of proceedings - non-recording of reasons and its non-communication - whether the adjudicating Authority is bound to record his reasons for formation of an opinion under sub-Rule 3 of Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 in writing and also communicate the same to the noticee if required by the noticee before proceeding with an enquiry?
Held that:- The adjudicating Authority is not under any statutory obligation to communicate his reasons for forming an opinion to conduct an enquiry under sub-Rule 3 of Rule 4 of Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000. We may draw an analogy with the provisions of the Prevention of Money-Laundering Act, 2002.
Whenever a statute requires a particular thing to be done in a particular manner, it is a trite position of law that it should be done in that manner alone and not otherwise. The provisions of sub-Rule 3 of Rule 4 in contra distinction to the provisions of the Section 5(1) of the Prevention of Money-Laundering Act, 2002, do not require the reasons to be recorded in writing. If we are to read into the provision, such a requirement, the same in our considered opinion would lead to disastrous results, where notices under various enactments which provide for enquiry on the basis of a subjective satisfaction of the adjudicating Authority or the enquiry officer or the Disciplinary Authority would take a stand that those Authorities should also record their reasons for forming an opinion and communicate the same.
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2018 (5) TMI 1841
Proceeding under FERA - contravention of Section 8(1) of FERA read with Sections 64(2) and 51 - Penalty imposed - non specification of charge for violation of the provisions of FERA - Held that:- The prejudices that a charged person suffers by reason of undue long pendency of a proceeding against him are many fold as noted in some of the decisions discussed above. In the facts of the present case by no stretch of imagination it can be said that the delay that has been caused in the adjudication process is reasonable and absolutely no explanation has been furnished for such delay. The charges against the petitioner are of a quasi-criminal nature and the right of the petitioner to have a speedy disposal of the adjudication proceeding has been infringed by the respondents in the facts of this case. On this ground alone the impugned show cause notice is liable to be quashed.
The show cause notice also does not give sufficient details on the basis of which the charge of violation of the provisions of FERA has been brought against the petitioner. No doubt economic offences are offences against the society at large and should be curbed. However, if the respondents had sufficient incriminating materials against the petitioner they would have surely supplied copies thereof to the petitioner in compliance with the principles of natural justice and would have proceeded with the adjudication process. The very conduct of the respondents raises a strong suspicion in mind that the respondents have no such material which would establish the charge levelled against the petitioner. This is one of the reasons why I am of the opinion that it will not be to the detriment of public interest or contrary to the interest of justice if the impugned show cause notice is quashed. ‘Justice delayed is justice denied’ is not a cliché.
The impugned show cause notice dated 14 January, 1991 is quashed along with the notices of hearing. The adjudication proceeding stands dropped against the petitioner.
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2018 (5) TMI 1531
Violation of Section 3(a), FEMA - Penalty - Burden of Proof - Prevention of Money Laundering Act, 2002 - amount received in foreign currency from unknown persons and same was spent when in India - Held that: - It is settled legal principle that onus of proof, in both civil and criminal law, is on the person who wishes to prove a particular fact - There is no statutory provision in FEMA imposing reverse evidentiary burden upon an accused person, as is the case under PMLA.
The Special Director, ED failed to appreciate the fact that with respect to the Appellant‟s travel to Middle-East, the major expenses were for Air Travel which was purchased in Indian Rupees and other expenses were taken care of by his friends - The Special Director, ED has erroneously held that the aforesaid Affidavits cannot be considered as the Appellant did not mention the names of these persons and the respective countries in his written submissions - The Special Director, ED has incorrectly ignored the affidavit of Mr. Saikumar by holding that the Consulate General of India, Dubai takes “No responsibility” for the correctness of the statements made in the above affidavit and has thus proceeded on an incorrect understanding of law.
Penalty - Held that: - the present case is not fit for imposition of Penalty because liability to pay penalty does not arise merely upon the proof of contravention of a provision. Being an quasi-criminal proceeding, imposing penalty for contravention of a statutory obligation ought not ordinarily be imposed unless the accused/ defendant acted deliberately in defence of law or was guilty of contumacious or dishonest conduct or acted in conscious disregard of the obligation.
Appeal allowed - decided in favor of appellant.
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2018 (5) TMI 1530
Identity of the offender - appeal filed mainly on the ground that ED had booked a case against them on a wrong presumption and was a case of mistaken identity - Held that: - it is clear that ED has not been able to prove that the appellant and Shri Farooque Memon, who seems to be the offender, are one and the same person. This is strengthened by the order of the Additional Chief Metropolitan Magistrate at Ahmedabad in the bail application.
All evidences on record point that Shri Farooque Mithawala and Shri Farooque Memon are two different people - Shri Farooque Mithawala the appellant has been wrongly implicated.
Appeal allowed.
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2018 (5) TMI 730
Proof of goods purchased by remitting the foreign exchange brought into India - offence under FEMA - Held that:- The two consignments have been auctioned by the Customs/CWC as the appellant failed to clear the goods within the bond period and the authorities have recovered the customs duty and other charges payable on the two consignments. In these circumstances, it cannot be said that the appellant has failed to prove that the goods purchased by remitting the foreign exchange have been brought into India.
The photocopy of the Bill of Entry provided by the appellant carries the signature and endorsement of the relevant customs officer, clearly evidencing that the relevant import has taken place.
It is well settled in the case of Hindustan Steel Ltd v State of Orissa (1969 (8) TMI 31 - SUPREME Court) that a penalty will not be imposed for a mere technical breach or even because it is lawful to do so unless the party on whom the penalty is imposed, acts in deliberate defiance or the law or is guilty of contumacious or dishonest conduct or acts in conscious disregard of the law, none of which are present in the present case. On the contrary there is no violation of section 10(6) or any other provisions of FEMA or regulations thereunder and the current management of the appellant (which has taken over the affairs of the appellant 12 years after the alleged contravention in 2000), has all along acted in a bona fide manner and is not guilty of any contravention or any dishonest conduct.
By Order dated 02.02.2018, the interim application of the appellant was allowed and thereafter the present appeal was heard. For the above such facts and reasons, the order passed by the Adjudicating Authority is not sustainable in law.
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2018 (5) TMI 729
Offence under FERA - Whether appellant had any knowledge or role in distribution of foreign exchange? - Held that:- There is no allegation in the Show Cause Notice or the Adjudicating Order that Appellant either made any payment of any such foreign exchange or was aware about any such payment. In any case, a person who had done the whole transaction has been let off and the same Adjudicating Order against him has been quashed, the order against the Appellant can be sustained even on parity.
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2018 (4) TMI 1342
Seizure of bank account due of the suspicion that foreign exchange was suspected to be held outside India in contravention of Section 4 of the FEMA, 1999 - Liberalise Remittance Scheme (LRS Scheme) - Exercise of powers conferred upon him in terms of the provisions of Section 37A(1) of FEMA, 1999 - Held that:- The main error in the impugned order is that RBI scheme has not been discussed at all. The impugned order is totally silent about the scheme. The relevant circulars of RBI 2004 to 2007 have not been considered. When, it was pointed to Mr. Rana, he says that these are not applicable. The said arguments of Mr. Rana is without any force as the circulars speak for themselves and those are applicable.
It is also a matter of surprise that the hearing were conducted by the Ld. Competent Authority in disjoint manner, separately for appellant and separately for complainant. The said practice is not a healthy practice in our system. It is apparent that the Competent Authority did not want to hear the matter in the presence of both parties.
The Competent Authority has violated the principles of natural justice by not affording cross-examination of respondent authority while passing the order by which the Appellant would have been able to establish the fallacy of allegations and also the fallacy of patent illegality of the order apart from exhibiting that there was no material nor the reason to believe as envisaged under Section 37-A(1) of FEMA, 99.
In the nature of the seriousness of present case, the right to cross- examination would have been given in view of gravity of the matter. Had the said right been granted, there might have been different result. Rather in the present case, the adjudicating authority has issued the notice after the expiry of five months knowingly well that the proceedings were to be completed within the period of 180 days. Even no time left for the purpose of cross-examination of relevant witnesses.
In the interest of justice equity and fairplay we allow the respondent to again verify the position as to whether the appellants have brought the entire amount of remittance within four weeks, from the date of the order after verification the amounts seized be released in the accounts of Appellants with YES Bank, Chhattarpur Branch, New Delhi within one week thereafter. The liberty is also granted to the respondent to move application for clarification if any pertaining to deposit of amount in question.
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2018 (4) TMI 1110
Violation of the declared FDI Policy - Held that:- Enforcement Directorate has taken action against the violators. The Enforcement Directorate has also filed a counter affidavit pointing out that it is inquiring into e-commerce entities which are guided by self gain or motive other than in public interest and that the Bangalore Zonal office of the answering respondent had initiated enquiries against ten (10) e-commerce entities and in 5 out of these 10 of those enquiries, investigations are reported to be underway. Charge-sheets have been prepared in 4 out of 5 cases in which investigation has been completed and the same are pending consideration. Besides that, enquiries were also initiated against Firstcry.com and Infibeam.com by the Mumbai and Ahmedabad offices respective of the answering respondent and the same are under progress.
Therefore the respondents are conscious of their responsibilities and are taking action for violation of the applicable FDI Policy. The required action upon completion of the investigation would have to abide by the procedure prescribed by law.
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2018 (4) TMI 681
Violation of FERA - lending against the deposit without taking any primary security - Held that:- Bank had lent money against the security of deposits in the NRNR accounts. There was no bar in such type of lending as is apparent from the RBI’s Notification. The bank was required to comply with the condition attached to such lending as prescribed by the RBI under the FERA/FEMA. One such condition was that the bank could grant loan facilities to resident individuals, firms, companies in India against the collateral of such fixed deposits.
In spite of the aforesaid conditions of granting loans against collateral security of such deposits the bank continued to grant loans to the resident individual (third parties) treating them as primary security. Understood that the assets created out of the proceeds of the loan could only be the primary security and not the deposits in the present case. Thus, the action of the bank in lending against the deposit without taking any primary security was not in consonance with the provisions of the Act. Details as enumerated at para 5 supra, proves the violation of FERA. RBI’s suspension of the said account also point towards the wrong doing.
Banks are expected to act as trustees of public money rather than misusing the powers granted by the regulators thereby facilitating abuse of the Act by unscrupulous persons. The appellant bank therefore cannot be absolved of the charges against it.
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2018 (4) TMI 421
Violation of Section 9(1)(e) of Foreign Exchange Regulations Act, 1973 - failure to comply with the mandatory requirement of Section 61(2) of FERA - Held that:- The subject complaint was filed on 29.05.2002. Since petitioners were never granted an opportunity, as mandated by Section 61(2) of FERA, there is clearly a breach of the mandate of law. Since the requirements of Section 61(2) of FERA have not been complied with, reliance placed by the respondent on the statement recorded at the time when proceedings under Section 40 of FERA were being undertaken and reliance on the same in the impugned order as sufficient compliance of Section 61(2) of FERA, is clearly misplaced.
Since respondents have failed to comply with the mandatory requirement of Section 61(2) of FERA, the Trial Court clearly erred in taking cognizance.
The impugned order on charge dated 11.07.2017 cannot be sustained and is liable to be set aside. The impugned order dated 11.07.2017 is, accordingly, quashed. The present petition is allowed.
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2018 (4) TMI 232
Stay petition - Held that:- This is is an arguable case on merits and hence cannot also be stated to be prima facie in their favour. They are accordingly required to pre-deposit the penalty of ₹ 10 lakhs within a period of four weeks from today failing which the appeal shall be disposed off as per the provisions of FEMA.
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2018 (4) TMI 162
Order passed by an officer coram non judice - gross violation of the principles of natural justice. These orders have been passed without complying with the statutory requirements - Held that:- Though a writ of certiorari can be issued by this court despite the presence of alternate and equally efficacious remedy, that is not a prohibition or rule, but a matter of prudence, still, whether to issue such a writ or not depends upon the facts and circumstances of each case. No general rule can be laid down. Eventually, this court's jurisdiction under Article 226 of the Constitution of India is extraordinary, discretionary and equitable. One who invokes this jurisdiction must approach this court with clean hands. Once we have noted that the petitioner never disputed the power of the authority to issue the show cause notice, the competence to adjudicate it and pass a final order thereon and that the notice refers to both enactments, namely, FERA and FEMA, all the more we are not inclined to grant any relief in writ jurisdiction.
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2018 (3) TMI 1291
Appeal for non-compliance of pre-deposit of penalty - Held that:- All the information provided proves that the conduct of the appellant/his counsel has not been very honest and they have tried to misguide the tribunal. That they have failed to file a review petition within a reasonable time is apparent from above, and are now coming up with some ground or the other. The judgements relied upon by the learned counsel of the appellant during hearing as ground do not help them as none of the Judgements deals with condonation of delay when the conduct of the appellant in making the said application is in doubt.
The Miscellaneous Application for condonation of delay in filing the Review Petition is therefore, dismissed.
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2018 (3) TMI 1251
Public authority excluded from the purview of Right to Information Act - Held that:- Section 24(1) of the Act expressly excludes intelligence and security organizations specified in the Second Schedule of the Act from the purview of the Act. Admittedly, the Directorate of Enforcement is included in the Second Schedule to the Act and, thus, cannot be called upon to disclose information under the provisions of the Act. The only exception carved out from the exclusionary clause of Section 24(1) of the Act relates to information pertaining to allegations of corruption and human rights violation. Undisputedly, the information sought for by the petitioner cannot be categorized as such information.
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2018 (3) TMI 1250
Maintainability of Appeal under Section 19 of FEMA Act - Held that:- Provisos to Section 19(1) of the Act, an appeal can be maintained/heard only when the issue of pre-deposit of penalty has been examined/addressed.
In the instant case, the conditions for filing Appeal has not been satisfied as no “penalty” has been imposed in the absence of “an order”. As the provisions laid down in Section 19(1) of the Act have not been fulfilled, the appeal filed by the appellant is pre-mature and hence non- maintainable.
As stated earlier, the instant appeal has been filed by the appellant against “record of personal hearing” held on 15.11.2017 in the office of the Special Director of Enforcement, Mumbai.
As would be observed from the above, appeals have been filed at various stages during the course of Adjudication proceedings praying this Tribunal to pass certain directions to the Adjudicating Authority. Even the instant appeal has not been filed against an “order” of the Adjudicating Authority. The provisions of Section 19 of FEMA entitles the appellant to prefer an appeal only once the “order” is passed and not against hearings conducted by Adjudicating Authority in adjudication proceedings.
The contention of the appellant that Section 19(6) empowers the Tribunal to suo moto examine the “legality, propriety or correctness of any order” made by the Adjudicating Authority is not restricted and limited to the final order and that the words “any order” in Section 19(6) and “an order in Section 19(1) has to be given the same meaning is misconceived and misleading. This could not have been the intent of the legislature as every notice issued by Adjudicating Authority or hearing/enquiry conducted by Adjudicating Authority in the process of adjudication so as to enable him to pass an “order” could become a subject matter of appeal.
In the instant case, the conditions for filing Appeal has not been satisfied as no “penalty” has been imposed in the absence of “an order”. As the provisions laid down in Section 19(1) of the Act have not been fulfilled, the appeal filed by the appellant is pre-mature and hence non- maintainable.
It would not be prudent for this Tribunal to entertain the appeal against the “record of personal hearing” in the office of Adjudicating Authority during the course of Adjudication proceedings. Needles to reiterate, it would also not be prudent for this Tribunal to advice/direct/instruct the Adjudicating Authority to follow a specific or particular course of action in adjudication proceedings as the same would amount to interference in the functioning of the Adjudicating Authority.
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2018 (3) TMI 1136
Calling of witness Mr. Chokshi whose cross examination was already conducted on 20/09/2017 was rejected - Held that:- It is the interest of justice, equity and fairplay, let Mt. Chokshi be further cross-examined on this aspect. The argument of the respondent has no forced that the appellant has covered entire case on 20.09.2017 if when the question of 41-45 were put to Mr. Chokshi.
Thus, the findings given in the impugned orders are contrary to facts and law and are not sustainable. The prayer for recall of witness ought to have been allowed in view of peculiar facts of the matter. The appeal is liable to be allowed. The impugned order is set-aside.
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