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FEMA - Case Laws
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2017 (6) TMI 983
Condonation of delay - period of limitation - submission of the respondents that FEMA is a special statute and, therefore, the provisions of Section 5 of the Limitation Act, 1963, would have no application - Held that:- Having regard to the provisions of the Statute, we are of the view that, given the language of the proviso to Section 35 of FEMA, this Court does not have a power to condone the delay beyond the time prescribed therein. The language used in the proviso appended to Section 35 of the FEMA by necessary implication excludes applicability of Section 5 of the Limitation Act to FEMA, being a Special law, which operates in a field, inter alia, connected with economic offences. Speed coupled with certainty are the bedrock of the statute. Clearly, even according the Revenue, the accompanying appeal has been filed beyond the prescribed time frame.
We are unable to condone the delay. The application will have to be dismissed.
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2017 (6) TMI 957
Non release and repatriate to India any foreign exchange which is due or accrued - Whether the company had failed to take all reasonable steps within the prescribed period, to release and repatriate to India, any foreign exchange which is due or accrued to it and in failure to do so, the department shall proceed, as per Section 8 of the Act, read with Regulation 3 of the Foreign Exchange Management (Realization, Repatriation and Surrender of Foreign Exchange) Regulations 2000 ?
Held that:- The company should take all reasonable steps to release and repatriate to India, the entire amount due in US dollars within such period and in such manner as stated by the Reserve Bank of India. In the case on hand, the department states that the company had obtained no permission from the Reserve Bank of India, under Section 42 of FEMA. Therefore, any violation to section 42 of the Act, the provisions of FEMA would attract against the company. No material has been produced before this Court as to what steps have been taken to realise the amount, within the stipulated period. The company was not able to place any material to show the reason for the failure to realise the said amount within the stipulated period, or any permission for extension of period has been obtained from the Reserve Bank of India, as contemplated under Section 42 of the FEMA. In the absence of any such orders from the Reserve Bank of India, the contention of the company cannot be accepted. Therefore, as the company has not complied with the provisions of FEMA, the action initiated by the department, for violation of FEMA is in consonance with the provisions of law. In view of the above, the Tribunal has lost its sign to consider the above said provisions of law, in allowing the appeals. Therefore, we have no hesitation to interfere with the orders passed by the Tribunal and hence the same is liable to be set aside.
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