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FEMA - Case Laws
Showing 501 to 520 of 854 Records
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2011 (1) TMI 1239
Violation of Section 9(1)(b), 9(1)(c) and 9(1)(d) of FERA - Imposition of penalty - Confiscation of seized money - Admissibility of evidence - Held that:- Adjudicating Authority has recorded statement of Smt. Gurmej Kaur who in her statement admitted that her husband is staying at Dubai and the documents (loose sheets and diary) is written in the handwriting of her husband who alone can explain the same regarding recovery of Rs. 65,000/- seized from her resident - Smt. Gurmej Kaur did not retract with her statement. Apart from that statement of Narinder Singh are also on record in which he has admitted that he has paid a sum of Rs. 2,30,000/- to Smt. Gurmej Kaur. Thus, her statements are corroborated by the statement of Narinder Singh to that extent and thus, receipt of Rs. 3,30,000/- is proved. Apart from that statement of Gulzar Singh, Kuldip Kaur, Surinder Kaur, Harmesh Lal, Gurdev Singh Fauji, Piara Lal, Rattan Singh, Pushapawati of Ludhiana are on record. These persons shows that the appellant has paid a sum of Rs. 8,37,000/- to these persons at different time in different amount.
Thus, there is ample evidence on record to show that Harbhajan Singh was involved in selling of foreign exchange without permission of Reserve Bank of India (RBI) and he sold foreign exchange to the tune of Rs. 8,57,000/-. However, there is no evidence on record to show that the appellant has disbursed a sum of Rs. 1,35,28,275/-. As the loose papers recovered from his house, appellant does not fall with Section 34 of the Evidence Act which provides that entries in a Book of Account recovery kept in the course of business are admissible in evidence. The entries in the diary and the loose sheets cannot be said to be account kept in regular course of business and, therefore they are not admissible in evidence - Penalty reduced - But confiscation sustained - Decided partly in favour of Appellant.
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2011 (1) TMI 1237
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... ... ..... relationship of the appellants with Rakesh Arora, even by this Tribunal at the time of hearing and their learned counsel Shri Khiwani refused to answer the said question by saying that he is not bound to answer. It is not possible that a person who is totally unconnected with the appellants will make a gift of Rs. 2,50,000/- without any consideration to the appellants and therefore presumption can be drawn that they must have taking the equivalent amount in foreign exchange in his account at New Delhi and received cheques from him as a gift and thus converted their black money into white. 15. emsp In such situation in the absence of any relationship between Rakesh Arora and the present appellants it can be safely presumed that the appellants have made payment to Rakesh Arora and thus violated provision of Section 9(1) (a) of FERA for receiving gift of Rs. 2,50,000/- to each of them. Hence no interference in the Impugned Order is called for and all the appeals stand dismissed.
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2011 (1) TMI 1236
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... ... ..... as to surrender foreign exchange within 90 days from the date of return. 3. emsp The Directorate of Enforcement after adjudication found that a Notification No. FERA/73/88-RB, dated 27-2-1988 was issued which provides that unutilized foreign exchange can be surrendered by person within 90 days from the date on which he comes to know that such foreign exchange cannot be used. Thus, according to the Directorate of Enforcement, the appellant has 90 days to surrender the said foreign exchange. The raid was conducted on 27-8-1992 i.e. within the period of 10 days from the date of return of the appellant from foreign tour. 4. emsp In such situation, the appellant cannot be held guilty of violation of Section 8(3) of FERA and the Directorate of Enforcement has erroneously imposed the penalty of Rs. 12,000/- on the appellant. In such circumstances, this appeal is allowed. The Impugned Order is accordingly set aside. The amount of penalty deposited by the appellant be returned to him.
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2011 (1) TMI 1235
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... ... ..... haria and while vacating they left some documents in the flat which were seized by the Police. This reply clearly an admission of the search and seizure of the documents. 6. emsp Section 72 of the FERA gives a presumption about the centered and safe part of such document unless contrary is proved. In such circumstances if it is held that mere retracted statement of the appellant cannot be made. The sole basis of the penalty in the present case the retracted statement of the appellant are corroborated by the recovery of the counter foil of the deposit slips of the bank which proves that the appellant has deposited amount in the bank account in the name of Sh. Ashwin Kumar, Proprieter of M/s. Shine Star Exports and thus he has done under the instructions of Al Nasir Ghilani who is resident of Dubai. And thus the violation of Sections 9(1)(b) and 9(1)(d) is proved. I find pruned and therefore, no interference in the impugned order is called for. Both the appeals stand dismissed.
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2011 (1) TMI 1234
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... ... ..... se Notice. The contention of Shri B. Naveen Kumar, Ld. Counsel for the Petitioner is that the order is illegal and contrary to law. On the other hand, Shri R. K. Handoo, Ld. Counsel for the appellant submitted that the Deputy Legal Adviser has no authority to file the revision on behalf of Director of Enforcement. In support of his argument, he relied on judgment of Delhi High Court in case of M/s. M. I. Enterprises v. Director of Enforcement passed in Criminal Appeal No. 806/2007, dated 4-8-2009 wherein the Delhi High Court has considered the question about the competency of Deputy Legal Adviser of filing the revision and held that Deputy Legal Adviser of the Director of Enforcement had no authority to file revision prior to 23-2-2009. The said view is followed by this Tribunal while deciding Revision Petition No. 10/2002, dated 13-1-2011 in case of J.K. Jain v. Director of Enforcement. In view of this judgment, the present appeal is not maintainable and dismiss accordingly.
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2011 (1) TMI 1072
Benefit under International Price Reimbursement Scheme (TPR Scheme’)denied - Proprietary concern and a merchant-exporter exported various automotive components, by virtue of the said export - contention of the Petitioners that since the EEPC had already found the claims to be in order, it had to necessarily issue orders releasing the payment - Held that:- Refusal by the EEPC to clear the Petitioners’ claims for payment in terms of the IPR Scheme cannot be said to be either arbitrary or unreasonable. Unless the complete documentation in terms of the IPR Scheme was made available to the EEPC by the Petitioners, they could not expect the EEPC to clear their claims, no merit in either of the petitions and they are dismissed as such with no order as to costs
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2011 (1) TMI 315
Waiver of repatriation - The petitioner has complied with the order but has filed the present petition challenging the legality and validity of Sections 18(2) and 18(3) of FERA on the ground that they are manifestly arbitrary and irrational - The impugned Sections only raise a presumption against the exporter, but the same can be rebutted by the exporter - constitutional legality and validity of Sections 18(2)and 18(3) of FERA has already been upheld by the Supreme Court in Seema Silk & Sarees and Another vs. Directorate of Enforcement and Others, (2008) 5 SCC 580 - it is apparent that FERA finds place in the Ninth Schedule of the Constitution of India and in accordance with Article 31-B of the Constitution, none of the Acts specified in the Ninth Schedule can be held ultra vires even if the provisions of the said Act are inconsistent or abridge any of the fundamental rights contained in Part-III of the Constitution of India - The writ petition is dismissed
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2010 (12) TMI 1079
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... ... ..... per and in the interest of justice to remand the matter back to the Director of Enforcement on payment of cost of Rs. 10,000/- as the appellant himself is responsible in not giving the intimation of change of address to the authorized dealer. On production of these documents, the Director of Enforcement shall be free to make enquiries about the genuineness of the said document from the authorized dealer i.e. Industrial Credit and Investment Corporation of India Ltd., Foreign Exchange Department, Scindia House, Ballard Estate, Bombay and then pass appropriate order within period of two months from the date of appearance of the parties. Parties are directed to appear before Director of Enforcement, Mumbai on 1st February, 2011. 10. emsp The appellant had deposited a sum of Rs. 10 lakhs towards the penalty. The said amount shall be subject to the final order passed by the Director of Enforcement and shall be refunded only after final order passed. The appeal stands disposed off.
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2010 (12) TMI 657
Violation FERA - Proceedings under FEMA - taking notice versus issuing notice - period of limitation of 2 years - whether the adjudicating officer has taken notice of the alleged contravention of FERA within the period of two years from the commencement of FEMA so as to adjudicate upon such contravention of FERA under the provisions of FEMA - Held that:- the adjudicating officer on taking notice of the alleged contravention of FERA has signed signing the show cause notice on 31-5-2002. Since the adjudicating officer has taken notice of the alleged offence on 31-5-2002 which is within a period of two years from the commencement of FEMA as contemplated under Section 49(3) of FEMA, the adjudicating officer would have jurisdiction to adjudicate the notice dated 31-5-2002. The fact that the said notice was posted on 5-6-2002 and served upon on 6-6-2002 would not invalidate the proceedings initiated by show cause notice dated 31-5-2002, because for the purpose of Section 49(3) of FEMA what is relevant is ‘taking notice’ and not issuance or service of notice. - Petition dismissed.
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2010 (12) TMI 18
Illegal seizure – seizure of gold and cash – period of holding under seizure – seizure under FEMA as well as under Income Tax simultaneously - seizure of both the gold and cash took place way back on 11th July 2005 and for over five years now even no show cause notice has been issued to the Petitioner – Held that: - It is not understood how, despite not issuing any legal justification for detention of the Indian currency amounting to Rs. 1,49,000/- and 6 kgs of gold, it was retained by the ED till 28th August 2009 i.e. for over four years. The affidavit dated 19th November 2009 filed by the ED admitted that 6 kgs of gold as well as the seized Indian currency were handed over to the IT Department only on 28th August 2009. On its part the IT Department admitted to thereafter having received both the gold as well as the Indian currency and admitted having issued the warrant of authorization under Section 132A of the IT Act. - A perusal of Section 37 of the FEMA reveals that it cannot be invoked to seize Indian currency. The ED had itself admitted before this Court that there was no basis for seizure by the ED of the 6 kgs of gold. As far as Section 132A of the IT Act is concerned, it does not permit indefinite detention of the seized items by the IT Department without even issuing show cause notice to explain the legal basis of detention of the seized item – direction issued to release of goods
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2010 (11) TMI 737
Writ petition - Search and seizure - petitioner did not deposit a sum of Rs. 10,00,000/- imposed against him as penalty. Along with the appeal, he filed an application under Section 52(2) of the Act seeking to dispense with such deposit on the ground that he does not have wherewithal to deposit the same and insisting for such deposit would cause undue hardship to him - amount seized by the department from the petitioner has been subjected to confiscation, no materials available on record to disbelieve the statement of the petitioner that he does not have wherewithal and there appears to be some truth in the claim of the petitioner and finally having regard to the fact that the petitioner is a chartered accountant by profession, and so, he must have some reasonable income, conditional order in favour of the petitioner to direct him to deposit a sum of Rs. 2,00,000/- (Rupees two lakhs only) within a period of 45 days from the date of receipt of a copy of this order for entertaining the appeal as provided in Section 52(2) of the Act. To that extent the impugned order needs interference.
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2010 (11) TMI 611
Whether any requisite and reasonable steps had been taken by the appellant to recover the export proceeds from the overseas buyers - specific charge against the appellant was that for the non-repatriating the outstanding proceeds by way of foreign exchange to the country within the stipulated period, the appellant contravened the provisions of Section 18(2) read with 18(3) of the FERA - It is, no doubt the appellant was continuously in touch with their Agent- Commercial at France to take steps to recover the amount and finally the Agent-Commercial expressed his inability to recover the amount - according to the appellant, further steps such as filing a suit at France, contacting the Indian Embassy at foreign countries, etc. would amount to expending huge amount of good money for bad dues whether the correspondence produced by the appellant that had been exchanged between themselves and their Agent-Commercial and the Legal Representative are sufficient enough to come to the conclusion that the appellant had taken necessary and reasonable steps to recover the amount or not - any amount of correspondence sent by the appellant to the foreign buyers or to the Legal Representative or to the Agent-Commercial, is only an internal correspondence - The letter correspondence between the appellant and their foreign buyers is not sufficient enough to prove the reasonableness of the appellant to secure the foreign proceeds within the purview of the Act - civil miscellaneous appeals are dismissed
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2010 (10) TMI 1158
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... ... ..... confessional statement can become the basis of conviction if the Court is satisfied from the evidence that it is voluntary and is true. In the instant case, the retracted confessional statements of the appellants are fully corroborated by the documentary as well as attended circumstantial evidence of the case. Thus the statements of the appellants are found to be voluntary and true which reflects correct facts. 7. Thus having considered the facts, evidence and circumstances of the case, I am of the view that the charges are proved against the appellants beyond reasonable doubt who have rightly been held guilty by the Adjudicating Officer. Now coming to the question of quantum of penalty, the penalty amount is commensurate to the gravity of the charge levelled against the appellants. I find no reason to interfere with the impugned order which is confirmed and upheld. The appeals are dismissed having no merits. The pre-deposited amount may be appropriated towards penalty.
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2010 (10) TMI 1157
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... ... ..... ental slip or omission is an error due to careless mistake on the part of the court liable to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the court which may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case.” 7. Thus on the basis of facts, evidence and circumstances of the case, I am of considered view that the review petition is not maintainable and is rejected. An order is passed accordingly. The record of this petition may be consigned to Record Room
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2010 (10) TMI 1050
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... ... ..... 5 RPT.(ST).11490/10-WP.7955/06 and minor penalties were imposed on the defaulter. The Government Counsel conceded before the High Court that the penalty was imposed under specific rules which was Rule 11 of the Central Civil Services (Conduct) Rules, 1964. Upon seeing that the intention of the punishing authority was not to impose minor penalty, it was held that the concession on question of law by Counsel does not bind the party. 12.It is contended by the Petitioner herein that the concession has been wrongly made. Whether or not rules and the law in respect of appointment of the Respondent herein were followed or not would have to be seen before the impugned order in the Petition is set aside. Consequently, it is seen that the Petition itself would have to be heard on merits, the concession of the Counsel notwithstanding. 13.Hence the Review Petition is allowed. 14.The order dated 14th March 2008 is set aside. 15.The Writ Petition shall be heard on merits by regular Court.
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2010 (10) TMI 944
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... ... ..... provisions of this sub-section which may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in, India shall - (a) nbsp nbsp make any payment to or for the credit of any person resident outside India (b) nbsp nbsp received, otherwise than through an authorized dealer any payment by order or on behalf of any person resident outside India. 10. emsp After reading of the aforesaid provision it is necessary to prove that present appellant have made any payment to a person who is not resident of India or has received any payment from him he cannot be held guilty of violation of Section 9(1)(b) and 9(1)(a) of the Act. In absence of this evidence the order of penalty cannot be sustained. 11. emsp In the aforesaid circumstances in absence of any legal evidence support the finding arrived at by the adjudicating authority and Director Enforcement Directorate this appeal is allowed and impugned order imposing penalty of Rs. 2,00,000/- is set aside.
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2010 (10) TMI 936
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... ... ..... ed from the evidence that it is voluntary and is true. In the instant case, the retracted confessional statement of the appellant is fully corroborated by the documentary as well as attended circumstantial evidence of the case. Thus the statement of the appellant is found to be voluntary and true which reflects correct facts. 7. emsp Thus on the basis of above discussion, I am of the view that the charges are found proved against the appellant for contravention of the Section 9(1)(b) of the FER Act who has rightly been held guilty by the Adjudicating Officer. Now coming to the question of quantum of penalty, it is found commensurate to the gravity of charge levelled against the appellant. I find no reason to interfere with the impugned order. The appeal is, therefore, dismissed having no merits. The appellant is directed to deposit the penalty amount within 30 days from the date of receipt of this order failing which the respondent may recover the same in accordance with law.
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2010 (10) TMI 459
Confiscation of the foreign currency - Legal import - Jatin Jhaveri has produced before the Commissioner copies of the two currency declaration forms one dated 25-6-1994 for US $ 2,54,000/- and other dated 28-6-93 for US $ 35,250/ - The Commissioner in his order does not deny that these two forms had been issued. On the contrary, he refers to these documents produced before him at the hearing and mentions what seems to be changes in the dated from 26-6-93 to 25-6-93 and some discrepancy in the passport number - He emphasizes the suspicions behaviour of Jatin Jhaveri and his flight from the investigation, his disowning the currency in his statement of 12-10-1993 and the fact that the currency in any case is liable to confiscation for being attempted to be exported in contravention of the provisions of the Foreign Exchange Regulation Act -Held that:the submission of the learned Counsel for the Respondents that in the light of the two authorities under the Customs Act and Income Tax Act, having found the amount of 2,89,250 US $ to be legally brought into India and in the instant proceedings also the Tribunal having concurred with the view of the CEGAT, this Court should not interfere in the above Appeals - Decided in favour of assessee. Appeals - The objection of the Respondents to the maintainability of the Appeals would have to be sustained on the application of Mohte Sham’s Case and resultantly, the Appeals would have to be dismissed on the ground that the Director of Enforcement who was the adjudicating authority had no authority to file the Appeals - The Appeals, therefore, to stand dismissed on the said ground also. Relief - Interest - The principal relief sought is that of the release of the currency amount of US $ 2,89,250 along with interest thereon @ 18% from date of seizure until release thereof to the Petitioner - However, the Petitioner would have to deal with the said amount in terms of the order of the CEGAT as also the Order impugned in the above Appeals i.e. re-export the said amount with the permission of the RBI - Since, the Respondents have retained the amount on account of the pending proceedings, we are of the view that the Petitioner i.e. Jatin Jhaveri in Appeal No. 64 of 2006 would not be entitled to any interest - Thus , the Petitioner would not be entitled to interest on the said amount of 2,89,250 US $.
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2010 (10) TMI 226
Appeal to High Court – Territorial jurisdiction - directors had entered into an agreement for sale of their share holdings in their individual capacity and since the directors reside in Mumbai, Court have jurisdiction notwithstanding the fact that the company had its registered office in Bangalore - agreement was in respect of the sale of the shares of the company which as indicated above can be said to ordinarily carry out its business in Bangalore at the relevant time - whole intrinsic cause of action can also be said to have arisen in Bangalore and therefore the Company’s appeal would lie before the High Court of Karnataka - Since the Company’s appeal would lie before the High Court of Karnataka, the Appeal Nos. 72/09 and 73/09 filed by the appellants, who were the directors of the said company, cannot be segregated on the ground that the directors reside in Mumbai and, therefore, the said appeals would also lie before the High Court of Karnataka
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2010 (10) TMI 156
Foreign exchange – Adjudication – acquisition of foreign exchange without RBI permission - spending of foreign exchange without RBI permission - Notice to show cause - Held that: The appellants insisted for supply of all documents in the possession of the authority and such demand is based on vague, indefinite and irrelevant grounds. The appellants are not sure as to whether they are asking for the copies of the documents in possession of the adjudicating authority or in possession of the authorized officer who lodged the complaint. The only object in making such demand is obviously to obstruct the proceedings and the appellants, to some extent, have been able to achieve their object as is evident from the fact that the inquiry initiated as early as in the year 2006 still did not even commence. Adjudicating authority to deal with the complaint as expeditiously as possible and every endeavour shall be made to dispose of the complaint finally at the earliest. No unreasonable request for adjournment shall be entertained by the adjudicating authority.
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