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FEMA - Case Laws
Showing 461 to 480 of 854 Records
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2012 (2) TMI 471 - APPELLATE TRIBUNAL FOR FOREIGN EXCHANGE, NEW DELHI
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... ... ..... riod sought to be extended by the exporter or expiry of the reasonable period. 16. Considering the above position, available records and in the absence of any material contrary brought on record it is difficult to accept that the appellants have realised substantial amount outstanding against export proceeds leaving balance of 5 of the total export value. In the light of the above discussion, the appellants have failed to displace the adverse rebuttable presumption under Section 18(3) of the FER Act, 1973. 17. In such a situation, the impugned adjudication order cannot be faulted and this appeal is liable to be dismissed for want of merit. An order is passed accordingly. The appellants are directed to deposit their respective penalty amount within seven days from the date of receipt of this order. In case of failure of appellants in making the payment as aforesaid, the Enforcement Directorate will be entitled to realise the amount of penalty in accordance with law.
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2012 (2) TMI 400 - BOMBAY HIGH COURT
FERA Act, 1973 violation of the provisions of Sections 8(3) and 8(4) of the Act by four companies - whether banks and their respective employees can be held guilty of abetting Companies for such violation fresh LC opened even on failure to file BE for prior import - remittance of substantial amounts of foreign exchange against large number of confirmed L/Cs failure to scrutinse defective import documents Third bench of Tribunal held in negative Held that:- The order passed by the Third Member, besides being cryptic, does not take note of all the materials which were on the record of the adjudication proceedings. Therefore, impugned order of the Tribunal based on the decision rendered by the third Member on the points of difference, should be set aside and the appeals be remanded back for hearing afresh Decided in favor of assessee.
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2012 (2) TMI 268 - BOMBAY HIGH COURT
FERA 1973 - Release of foreign exchange in violation of the instructions of the RBI resulting in a violation of the relevant provisions of the FERA 1973 - allegation against the Appellants is a failure to discharge their responsibilities under the law and to ensure legal compliance - Section 68(1) & 68(2) Held that:-The burden of establishing a defence in terms of the proviso to subsection (1) of Section 68 lies upon the person against whom the contravention is established under the substantive part of the provision. Having failed to establish their burden, the absence of connivance cannot come to the aid of the Appellants. Hence, no substantial question of law would arise in these appeals. The Appeals are accordingly dismissed.
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2012 (2) TMI 177 - BOMBAY HIGH COURT
Condonation of delay of 570 days appeal filed against order passed by Appellate Tribunal constituted under the FEMA, 1999 appeal filed to Appellate Tribunal against an order of adjudication passed on 30.10.2003 by the Special Director of Enforcement, after the repeal of the FERA, 1973 Held that:- An appeal against the order of the Appellate Tribunal would be governed by the provisions of Section 35 of the FEMA, 1999. This Court does not have any jurisdiction to condone a delay in excess of sixty days beyond the period of sixty days prescribed for the filing of an appeal Decided against the petitioner.
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2012 (1) TMI 198 - DELHI HIGH COURT
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... ... ..... 0/-. For agitating the said claim, writ is not an appropriate remedy. To this extent, we differ from the judgment (supra) of Bombay High Court. 16. The appeal therefore is allowed to the aforesaid extent. The judgment of the learned Single Judge dismissing the writ petition qua the amount of ₹ 4,42,500/- is set aside and the respondents are directed to within eight weeks hereof pay the said sum of ₹ 4,42,500/- to the appellant failing which the said amount shall also incur interest at the rate of 10 per annum. However, as far as the claim of the appellant for interest at 10 per annum on the said sum of ₹ 4,42,500/- from 1st December, 2009 onwards is concerned, the judgment of the learned Single Judge dismissing the writ petition with liberty to the appellant to institute a suit therefor shall stand. We also award to the appellant costs of legal proceedings of ₹ 20,000/- payable by the respondent to the appellant, alongwith the amount aforesaid. Dasti.
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2011 (12) TMI 699 - BOMBAY HIGH COURT
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... ... ..... e Adjudicating Officer. 5. That being the position, and without expressing any opinion on the correctness of the findings of the Adjudicating Officer on merits, we set aside the impugned order of the Tribunal dated 26 October 2009 and remit the proceedings back to the Tribunal for a fresh decision. In the view that we have taken, we have not expressed any opinion on the questions of law raised and leave open all the rights and contentions of the parties to be raised before and decided by the Appellate Tribunal. We, however, clarify, by consent, that charge no. 5 which has been dropped by the Adjudicating Officer and on which finding there was no challenge by the Union of India shall not form the subject matter of the proceedings on remand. We leave it open to the Tribunal to consider all the material that may be produced by the Respondents including on the sufficiency of the certificate of KPMG. 5. The appeal is, accordingly, disposed of. There shall be no order as to costs.
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2011 (12) TMI 655 - DELHI HIGH COURT
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... ... ..... t the appellant no.1 company has changed its structure and in view thereof is entitled to a fresh opportunity. 11. We are again not satisfied. Once the appropriate agencies have found it unsafe to allow inroads in the country to a particular foreign entity, merely because such foreign entity undergoes a mutation would not change the position. Such mutation cannot wash away the taint with which the investment was found to be suffering. 12. The senior counsel for the appellants on the basis of the information gathered and filed by way of the additional documents has lastly urged that the conclusions against the appellants remain inconclusive and the appellant is entitled to a direction for further inquiry. However on the basis of the intelligence inputs which have been shown to us, we are not inclined to direct any further investigation when the respondents themselves have not deemed the same necessary. 13. We therefore do not find any merit in the appeal and dismiss the same.
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2011 (12) TMI 260 - MADRAS HIGH COURT
Import of Toyota Lexus Car - Department: Illegal purchase - Appellant: gifted by father-in-law, no reasonable opportunity provided, not asked for documents, notice barred by limitation - Notice issued under FERA - Held That:- Section 49(3) of FEMA has replaced FERA,the two years period was to expire on 31.5.2000, notice not effected by period of limitation. The act do not contemplate any time however period of 5 days can be considered as reasonable specially when appellant replied during such period. On ground of documents when the appellant was required to show whether he got any permission for such transaction, there would not have been any hesitation for the appellant to submit the same and it cannot be said. Decided against assessee.
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2011 (11) TMI 766 - DELHI HIGH COURT
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... ... ..... ctivity of smuggling and the scheduled properties acquired by the detenue, and the said “reasons to believe” do not show as to how a nexus is sought to be established between the income allegedly derived from the illegal activity of smuggling, and the acquisition of the said properties. 16. In the light of the aforesaid discussion, since the “reasons to believe”, as recorded by the competent authority appear to be wholly insufficient, the notice issued under Section 6(1) of SAFEMA cannot be said to have been issued validly. The competent authority did not derive the jurisdiction to issue the same in the absence of the recording of the valid “reasons to believe”. Consequently, the orders passed on the said notice by the competent authority on 28-11-1994, and by the appellate Tribunal on 8-3-1996 and the rectification order dated 8-5-1996 cannot be sustained and are, accordingly, quashed. Parties are left to bear their respective costs.
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2011 (11) TMI 62 - SUPREME COURT
Condonation of delay - the benefit of Section 14 of the Limitation Act cannot be extended to the appellants.- After having made a prayer that the writ petitions filed by them be treated as appeals under Section 35, two of the appellants filed applications for recall of that order. No doubt, the learned Single Judge accepted their prayer and the Division Bench confirmed the order of the learned Single Judge but the manner in which the appellants prosecuted the writ petitions before the Delhi High Court leaves no room for doubt that they had done so with the sole object of delaying compliance of the direction given by the Appellate Tribunal and, by no stretch of imagination, it can be said that they were bona fide prosecuting remedy before a wrong forum. Rather, there was total absence of good faith, which is sine qua non for invoking Section 14 of the Limitation Act. Regarding undue hardship - instead of coming clean, they tried to paint a gloomy picture about their financial position, which the Appellate Tribunal rightly refused to accept. If what was stated in the applications filed by the appellants and affidavit dated 10.10.2008 is correct, then the appellants must be in a state of begging which not even a man of ordinary prudence will be prepared to accept. To us, it is clear that the appellants deliberately concealed the facts relating to their financial condition. Therefore, the Appellate Tribunal did not commit any error by refusing to entertain their prayer for total exemption.
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2011 (9) TMI 428 - BOMBAY HIGH COURT
Compounding - Foreign Exchange from NRO for Equity Subscription - Amount received in names of director instead of sending the amount towards credit to the companys account - Held That:- Facts of each case to be seen before compounding .There is a public interest element in the enactment of regulatory statutes such as the FEMA. Whether compounding of a breach would compromise the public interest involved in the enforcement of law has to be considered in the facts of each case. With regard to the sensitivity nature of the contravention the matter will have to be further investigated by the Directorate of Enforcement
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2011 (7) TMI 1312 - GUJARAT HIGH COURT
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... ... ..... ion to admit a particular candidate to a course contrary to rules. In matters relating to internal working of an educational institution and more particularly, in the matter of admissions, the Court will not interfere unless the act complained of is clearly beyond jurisdiction or contrary to the statutes, rules or regulations governing the institution, or there is a statutory duty which the authority has failed to perform or the impugned act is mala fide or arbitrary. 35. It is not established that the act of the Respondent in cancelling the admission of the Petitioner is beyond or contrary to the statutes, rules or regulations or is unreasonable, nor it is demonstrated that the said action of the Respondent is arbitrary in any manner. 36. In the aforesaid view of the matter, we are of the opinion that no relief can be granted in favour of the Petitioner. 37. As we do not find any merit in the writ petition, the same is hereby ordered to be rejected with no order as to cost.
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2011 (7) TMI 1291 - KARNATAKA HIGH COURT
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... ... ..... t that any person "contravenes any of the provisions of this Act", has not been proved and what has been proved is that the Respondent disobeyed the summons issued and the disobedience of the summons issued is not an offence under the provisions of this Act. Even the high Court of Kerala in the decision reported in 1992 (58 ELT 172 Ker (Itty v. Assistant Director) has taken the same view and it also held that disobedience of summons for appearance is not equivalent to the contravention of the provisions of the FERA. So when the contravention of the provisions of the FERA is entirely different from the disobedience of the summons, I am of the opinion that the Trial Court was justified in dismissing the complaint and granting an order of acquittal to the Respondent. So taking into consideration these all circumstances, I am of the opinion that the Appellant has not made out any such grounds to warrant interference. In that view of the matter, the appeal is dismissed.
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2011 (7) TMI 861 - BOMBAY HIGH COURT
Whether an Appellant who files an appeal before the High Court under Section 35 of the Foreign Exchange Management Act, 1999 can seek an exclusion of time under Section 14 of the Limitation Act, 1963 - it is evident that Section 35 of the FEMA makes a special provision to the effect that an appeal before the High Court can be filed within a period of sixty days from the date of the communication of the decision or order of the Appellate Tribunal - Where the conditions which are spelt out in Section 14 of the Limitation Act are fulfilled, an exclusion of the period provided for therein, would be warranted in determining as to whether the appeal under Section 35 of the FEMA is within limitation - Held that: the appeal has been filed within the maximum period of 120 days. Sufficient ground for condoning the delay of sixty days within the meaning of the proviso to Section 35 has been made out in the Civil Application - Delay is condoned
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2011 (5) TMI 1097 - SC ORDER
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... ... ..... Adv. Mr. B. Krishna Prasad,Adv. ORDER Delay condoned. Leave granted. Tag with Civil Appeal arising out of SLP (C.) No. 8442/2010.
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2011 (5) TMI 994 - DELHI HIGH COURT
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... ... ..... dated 18.08.2010. We have also indicated above that the detenue in compliance with the said condition had, in fact, appeared before the Senior Intelligence Officer, DRI on the several dates referred to above. This fact has not been explained satisfactorily by the respondents. Therefore, in our view, there is a clear delay of 63 days, which has gone unexplained, in executing the detention order. On this ground also, following the decisions of the Supreme Court in A. Mohammad Farook (supra) and other decisions referred to in Saud Nihal Siddique (supra), we feel that the detention order is liable to be quashed. 12. In view of the foregoing discussion, this writ petition is allowed. The detention order No. F 678/12/2010 - CUS/VIII dated 30.08.2010 as well as the confirmation order F.No.673/12/2010-Cus/VIII dated 20.01.2011 are quashed. Respondents are directed to set the detenue at liberty forthwith. The writ petition stands allowed as above. There shall be no order as to costs
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2011 (5) TMI 16 - BOMBAY HIGH COURT
Condonation of delay - Section 35 of FEMA - Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal on any question of law arising out of such order - Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. " Held that: Applicant filed the appeal beyond time by 291 days - Therefore, this Court cannot condone the delay of 291 days in filing the appeal - Thus, the Civil Application is dismissed with no order as to costs.
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2011 (4) TMI 1435 - MADRAS HIGH COURT
Provisional order of attachment u/s 5(1) of the Prevention of money Laundering Act, 2002 (PMLA) - notice u/s 8 facts of the case - In connection with the petitioner's activities in forging documents and forging records in the name of non existing companies for the purpose of getting loan from the Bank, criminal cases were registered against the petitioner. The offence committed by the petitioner is covered by PMLA and investigation was undertaken by the second respondent Enforcement Directorate. It was thereafter, the provisional attachment order was made. The complaint u/s 5(5) of PMLA for Provisional Attachment was filed by the second respondent Deputy Director of Enforcement before the first respondent Adjudicating Authority. The first respondent on considering the complaint had issued a show cause notice u/s 8 of PMLA to the petitioner for his appearance before the first respondent calling him to show cause to his source of income, out of which or by means of which the provisionally attached movable properties were acquired. The petitioner instead of appearing before the first respondent has filed the present writ petition challenging the provisional attachment order as well as the case filed against him.
HELD THAT:- In the present case, by attachment of property made by the second respondent, the petitioner is not bound to lose anything and he cannot be said to be prejudiced. On the other hand, by virtue of Section 5(3), every order of attachment made u/s 5(1) of the PMLA will lose its efficacy either after 150 days or after an order passed u/s 8(2) of the PMLA. Therefore, it is only the petitioner instead of approaching the first respondent Adjudicating Authority who had initiated proceedings u/s 8(1), had rushed to this court. Even if the attachment is made final, u/s 26, an appeal lies to the Appellate Tribunal. Therefore, the petitioner must submit his explanation to the Adjudicating Authority and convince it that the amount sought to be attached was not obtained due to any money laundering and that it was the legally earned income. Even if he fails before the first respondent, there is time enough for challenging the same before the judicial appellate Tribunal constituted u/s 26 of the PMLA. When the Act itself provides for an inbuilt remedy, it is not open to the petitioner to rush to this Court at the stage of provisional attachment, which is yet to be confirmed by the Adjudicating Authority.
Therefore, the writ petition filed by the petitioner must necessarily fail.
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2011 (4) TMI 1300 - MADRAS HIGH COURT
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... ... ..... ght in law exists only and only when it has a lawful origin. (Vide Upen Chandra Gogoi vs. State of Assam (1998) 3 SCC 381, Mangal Prasad Tamoli vs. Narvadeshwar Mishra (1005) 3 SCC 422 and Ritesh Tewari vs. State of U.P. (2010) 10 SCC 677). Thus having concluded that the very initiation of proceedings against the petitioner is bad all subsequent proceedings are also invalid as the defect cannot be cured and as held by the Hon'ble Supreme Court, the order does not get sanctified at a later stage. 41. For all the above reasons and taking note of the catena of decisions of the Hon’ble Supreme Court, it is held that the show cause notice issued to the writ petitioner order Section 6(1) is illegal and invalid. Once the show cause notice is found to be illegal, the same would vitiate all the subsequent proceedings. In this view, the writ petition is allowed and the order of forfeiture passed against the writ petitioner Late Mrs.Mohammed Thaha Umma is set aside. No costs.
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2011 (4) TMI 489 - SUPREME COURT
Whether the Appellate Tribunal constituted under the FEMA, 1999 was right in rejecting a belated appeal filed under Section 19 of FEMA, applying the first proviso to sub-section (2) of Section 52 of Foreign Exchange Regulation Act, 1973 - Held that: the right of appeal under FEMA has already been saved in respect of cause of action which arose under FERA however subject to the proviso to sub-section (2) of Section 19, in the case of belated appeals - Section 49 of FEMA does not seek to withdraw or take away the vested right of appeal in cases where proceedings were initiated prior to repeal of FERA on 1-6-2000 or after - the time limit prescribed under FERA was taken away under the proviso to sub-section (2) of Section 19 and the Tribunal has been conferred with wide powers to condone delay if the appeal is not filed within forty-five days prescribed, provided sufficient cause is shown - Appeal is allowed by way of remand to Tribunal
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