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2013 (10) TMI 1006
Application for compounding - Right to appeal - Held that:- if the interim stay of the order dated 7 August 2013 is not granted and if the petitioner does not file an Appeal under Section 17/19 of the Act, the petitioners will loose its right of appeal. If the petitioners file an appeal they will loose the right to have their application for compounding considered. In view of the above, till the respondents file the affidavit in reply and the matter is finally heard, the petitioners rights cannot be foreclosed on both fronts. In view of the above, there shall be interim stay of the impugned order dated 7 August 2013 till further orders.
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2013 (10) TMI 904
Jurisdiction of special judge - Transfer of case from the Magistrate to the Special Judge - Held that:- it is apparent from a reading of Section 56 of the FERA as also Section 61 of the FERA that exclusive jurisdiction has not been conferred on the Magistrate to try cases relating to a violation of the provisions of the FERA. Absent jurisdictional exclusivity, the principle of law laid down in Antulay is not applicable and the Special Judge could have been conferred jurisdiction to try the case against the petitioners - The right of appeal available to the petitioners in the present case is not taken away by transferring the case from the Magistrate to the Special Judge. The petitioners continue to have the right to appeal, but it is only the forum that has changed. They can now prefer an appeal from the order of the Special Judge to the High Court. Therefore, it is not as if the petitioners are denuded of any right to agitate their cause in a superior forum by the transfer of the case to the Special Judge - Therefore, it cannot be seriously urged that the petitioners were prejudiced by a change of the appellate forum.
High Court could have exercised its judicial power of transfer under Section 407 of the Code (if called upon to do so) and it could also have exercised its administrative power of transfer under Article 227 of the Constitution, which it did, as is evident from the letter dated 6th May 2002 issued by the Registrar General of the High Court of Jharkhand to the Secretary to the Government, Law (Judl.) Department, Government of Jharkhand. The fact that for an administrative exigency, the High Court decided to exercise its plenary administrative power does not per se lead to the conclusion that the transfer of the case from the Magistrate to the Special Judge was unlawful. The legality of the action cannot be called in question in this case since no prejudice has been caused to the petitioners by such a transfer - Decided against appellant.
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2013 (10) TMI 363
Prohibition on export and import of foreign currency - Confiscation of foreign currency - Foreign brought to India without declaration - First adjudication authority ordered complete confiscation - Tribunal ordered release of confiscation stating no confiscation necessary at the time of leaving India and that the currency in possession of the first respondent was also within the limit permitted by Reserve Bank of India - Held that:- the first respondent, as a matter of right, is not entitled to import or export in the manner as he wishes without complying with the provisions of the Regulations.
Whether foreign currency is goods for the purpose of confiscation - Held that:- Reading of the definition of "goods" as stated in Section 2(22) along with the definition of "currency" stated in Section 2(h) of FEMA, make it clear that export of currency contrary to prohibition imposed under any other law is liable for confiscation. Therefore, the contention of the learned counsel for the first respondent that there is no power to confiscate the currency under Section 113(d) of the Customs Act, is liable to be rejected.
The order of the Tribunal holding that there is no provision to declare the foreign currency in hand, cannot be sustainable. The currency possessed by the first respondent, was contrary to the Regulation, particularly Regulation No.5 which clearly states that as per Regulation, no person shall, without the general or special permission of the Reserve Bank, export or send out of India or bring into India, any foreign currency. The goods attempted to be exported being foreign exchange, as defined under the FEMA. - Decided in favour of Revenue.
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