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2015 (12) TMI 1695

Head Note / Extract:
Guilty of contraventions of Section 8(3) and 8(4) of FERA, 1973 r/w Section 49(3) and 49(4) of FEMA, 1999 - Penalty imposed - whether there has been no lapse/FERA violations on the part of the company and the transactions were wrongly reported in BFE due to oversight of the bankers of the company? - Enforcement Directorate creation - Held that:- We see no reason to remand the matter back to Adjudicating Authority at this stage when parties have been litigating for a period of more than 11 years. The genuineness of the papers filed by the appellants as proof of due compliance of the requirement of filing of the exchange control copies of the bills of entry with the authorized dealer within time has not been disputed by the respondents. The appeals are continuation of the trial proceedings. We are convinced on the basis of evidence filed by the appellants in the instant appeals that they had timely submitted the exchange control copies of Bills of Entries to the respective authorized dealers (banks). We are also convinced with argument that it was negligence/mistake on the part of the authorized dealers in not reporting the due compliances to the RBI and instead furnished wrong information. The basic fault appears to us on the part of the banks but since they are neither parties in these appeals nor they have been afforded any opportunity to place their version before the Tribunal, therefore, we are not making any observations against them.

We would like to emphasize that Enforcement Directorate has not been created for the sole purpose of prosecuting the matters of alleged violations under FERA/FEMA but they are duty bound to assist the Tribunal and the Courts by placing the correct facts before them on the principle of fair play so that the parties get fair justice and the faith of the parties is not eroded from the judicial system. The Enforcement Directorate is an organ in the system of dispensation of justice and the way the matters in which no case was made out as per the communication of the RBI was persuaded, without discloser of the contents of the communication received by the Enforcement Directorate, the appellants had to suffer not only in terms of expenditure that might have been incurred in the litigation but also wastage of lot of valuable time of the appellants, Tribunal and Courts. The expenses incurred in litigation by the appellants may run perhaps in lakhs of rupees. However, we think it appropriate that for the failure to place the communication before the Tribunal and convey the contents in time the respondents be imposed a token costs in all the appeals for their conduct.

In view of the above discussions the appeals deserve to be allowed with costs.


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