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FEMA - Case Laws

Showing 1 to 4 of 4 Records

• 2018 (2) TMI 1682
  

  Order of seizure in terms of provisions of Section 37A(1) of FEMA - foreign exchange worth USD 352258.25 suspected to be held outside India in contravention of Section 4 of FEMA - Held that:- The petitioner filed an additional affidavit dated 08.01.2018 placing certain factual details regarding the amount, which was lying in the foreign Bank account in 2002. Along with the additional affidavit, the petitioner has enclosed copy of the letters of HSBC dated 07.03.2016, 25.11.2014, enclosing the information regarding transfer of the petitioner s banking operation etc. In the light of the material, which has been placed before this Court, it would be necessary for the competent authority to consider the same as it may impact the proceedings by going to the root of the matter. However, I do not wish to express anything on the merits of the matter except to state that the petitioner should be afforded one more opportunity and place their objections to the confirmation of the order of seizure before the competent authority.

  So far as the order of seizure is concerned, the petitioner cannot be stated to be aggrieved by such an order of seizure, as no amount has been withdrawn from the petitioner s Bank account. Since the order of seizure has already been confirmed by the order passed by the first respondent, the question of interfering with the same at this juncture does not arise.

  Writ Petition is allowed and the impugned order passed by the competent authority is set aside and the matter is remanded to the competent authority for fresh consideration

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• 2018 (2) TMI 762
  

  Right to cross-examine - Cross examine the witnesses whose statements were recorded under Section 37 of FEMA and whose statements have been relied upon in the complaint - complaint alleges that the provisions of section 3(b) of the FEMA have been contravened by the petitioner by making a payment to Cricket South Africa (CSA) a person residing outside India, without permission of the Reserve Bank of India (RBI) and that is inter alia apparent from an agreement dated 30th March, 2009 executed between the BCCI and Cricket South Africa - Held that:- (i) The impugned order dated 10th July, 2015 and the contents of the communication are quashed and set aside.

  (ii) We direct respondent no. 1 to issue summons to the persons whose statements have been recorded and permit the advocates for the petitioner to cross-examine them. However, we are of the firm view that neither the petitioner nor the respondents can delay the proceedings any further.

  (iii) We are indeed surprised that the show cause notice issued way back on 25th November, 2011 remains unadjudicated till date. We do not see how even the respondents agreed to the postponement of the proceedings before this court and in a petition filed on 21st August, 2015. Since this petition was pending for more than two years, the adjudication has been delayed further. Hence, to ensure that the adjudication proceedings come to an end expeditiously, we direct that the petitioner will appear before the adjudicating authority on 14th February, 2018 at 10.30 a.m. and the adjudicating authority shall issue summonses in the requisite forms to the persons whose statements have been recorded and are being relied upon to appear before it for cross-examination and such cross examination shall be held on or before 2nd March, 2018.

  (iv) The cross-examination shall be conducted and concluded in two or three sittings and positively by 13th March, 2018.

  (v) After the cross-examination is conducted and further opportunities, as envisaged by the rules, are provided, we direct that the adjudication proceedings shall be concluded as expeditiously as possible and in any event by 31st May, 2018. No extension shall be granted in any circumstances.

  (vi) We clarify that we have not expressed any opinion on the rival contentions as far as the merits of the allegations in the show cause notices. We also clarify that each of them are kept open for being raised at an appropriate stage before appropriate forum.

  We must indicate that it is because of the acts and deeds of the BCCI in relation to a tournament styled as IPL that all these proceedings had to be initiated and now conducted in accordance with the FEMA. If IPL has led to serious breaches and violations of the FEMA, then, it is high time the organisers realise that after 10 years of holding such tournaments what we have achieved can be termed as a gain or advantage or benefit for they are outweighed completely by the resultant illegalities and breaches of law, which are projected in several courts consuming a lot of precious judicial time. If the IPL has resulted in all of us being acquainted and familiar with phrases such as "Betting", "fixing of matches", then, the RBI and the Central Government should at least now consider whether holding such tournaments serves the interest of a budding cricketer, the sport, the game itself. There is a auction and buying and selling of young cricket players by business houses and chubs. Apart from huge money involved, the tournament has brought with it crimes and casualties in the form of ban on clubs and players allegedly involved in wrong doing and breaching of rules and regulations

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• 2018 (2) TMI 579
  

  Abetting one Sh. P.G. Rawal in transferring foreign exchange in contravention of Section 8(3) read with 8(4) and Section 48 read with Section 64(2) - Held that:- While the order in original has passed a very detailed order, however the adjudicating authority has not given any evidence or facts to state as to how the appellant has abetted with Sh. P.G. Rawal, in the said contravention. It appears that he has based his judgment on an inference from the conduct of the appellant since in spite of ample opportunities given to him, the appellant has failed to file a reply or appear for the personal hearing.

  With regard to the contention that the appellant was the proprietor of two firms, i.e. M/s Vikram Sales Corporation and M/s Valifan Sales Agency, the adjudicating authority mentions at para 25 (vii) that the appellant in his statement, stated that both these firms belonged to Sh. Nitin Shah but the latter "appointed" him as the proprietor of the above two firms. It is not clear as to how a proprietor can be appointed. This fact has not been gone into by the original authority at all and no investigation has been conducted to establish the link between the appellant and the firms. Most importantly , no basis has been given by the adjudicating authority as to how he was involved in the entire case of fraudulently transfer of foreign exchange. This is a case where remittances were sent abroad by way of bogus imports. In order to penalize someone for contravention of various provisions of law, clear cut evidences have to be there with regard to his/their involvement. The adjudicating authority has made no efforts to provide the same. Instead, he has gone ahead and levied penalty of ₹ 7,50,000/- on the basis of mere inferences as recorded by him.

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• 2018 (2) TMI 333
  

  Offence under FEMA - reject the petitioner's application for cross-examination - Held that:- A plain reading of the application filed by the petitioner seeking cross-examination of certain individuals named above also indicates that the petitioner had reiterated its contention that the material or evidence on record does not substantiate the allegation made against him. At the outset, the petitioner had denied all the allegations made against him in the complaint filed against him. The only reason provided by the petitioner for seeking cross-examination of Mr. Manoj Garg, Investigation Officer and the complainant is that they can be confronted with the documents in question.

  According to the petitioner, the documents do not implicate or establish any offence on the part of the petitioner. The documents referred to by the petitioner are not documents that have been created or initiated by the investigating officer or the complainant; the documents have been found during the search and seizure operations conducted by the concerned officers. In the circumstances, this Court is not persuaded to accept that there is any ground to permit cross-examination as sought for by the petitioner. Similarly, there is also no ground to permit cross-examination of signatories to the Panchnama and the Panch witnesses either.

  In the facts of the present case, it is apparent that the case set up against the petitioner is not based on any testimony of the investigating officer but on documents. In the aforesaid circumstances, this Court finds no infirmity with the decision to reject the petitioner's application for cross-examination.

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