Appointment of Adjudicating Authority [ Section 16] - FEMA Ready Reckoner - FEMA

Appointment of Adjudicating Authority Appointment of Adjudicating Authority Section 16(1) Section 16 deals with the inquiry to be held by the Adjudicating Authority for the purpose of adjudication of the alleged contravention of FEMA. It provides that for the purpose of adjudication under section 13, the Central Government may appoint as many officers of the Central Government as it may think fit. The Adjudicating Authorities for holding an inquiry in the manner prescribed after giving the person alleged to have committed contravention under section 13 , against whom a complaint has been made under section 16(3) (hereinafter in this section referred to as the said person) a reasonable opportunity of being heard for the purpose of imposing any penalty. Where the Adjudicating Authority is of opinion that the said person is likely to abscond or is likely to evade in any manner, the payment of penalty, if levied, it may direct the said person to furnish a bond or guarantee for such amount and subject to such conditions as it may deem fit. Orders of appointment of Adjudicating Authorities In exercise of the powers conferred by Section 16(1) , the central government has made the following orders to appoint adjudicating authorities and specify their respective jurisdiction to hold inquiry for the purpose of adjudication in respect of certain contraventions. Date of Oder Order No. Scope of Order 01-06-2000 S.O. 535(E) Inquiry for the purpose of adjudication under section 13 of the FEMA Act, 1999 26-12-2000 S.O. 1155(E) Inquiry for the purpose of Adjudication in respect of contravention of section 6(3)(g) and Section 7(1)(a) of FEMA Act. 1999 S No. Designation of adjudicating authorities Cases within their territorial jurisdiction ( Monetary limit ) 1. Commissioner of Customs and Central Excise. involving an amount exceeding Rs. one crore. 2. Additional Commissioner of Customs and Central Excise involving an amount exceeding Rs. 75 lakhs but not more than Rs. 1 crore. 3. Joint Commissioner of Customs and Central Excise. Upto Rs. 75 lakhs. 26-12-2000 S.O. 1157(E) Appointment of officer to file complaint under Section 16(3) ) of FEMA Act, 1999 [ the Central Government hereby authorises an officer not below the rank of Assistant Director of the Directorate of Enforcement to file complaint before the Adjudicating Authority appointed under sub-section (1) of that section for the purpose of holding inquiry under sub-section (1) of section 16 of the said Act. ] 27-09-2018 S.O.4990 dated 27.09.2018, Superseded vide S.O. 2128(E) dated 08.05.2023 . as amended time to time Appointment of officer to hold an inquiry for the purpose of adjudicating under section 13 and the monetary limits of the cases. Sl. No. Designation of Officers Case Involving amount ( Monetary limit ) (1) Special Director of Enforcement Exceeding Rs. 25 crores. (2) Additional Director of Enforcement upto Rs. 25 crores but not less than Rs. 5 crores. (3) Joint Director of Enforcement upto Rs. 25 crores but not less than Rs. 5 crores. (4) Deputy Director of Enforcement upto Rs. 5 crores and not less than Rs. 2 crores. (5) Assistant Director of Enforcement upto Rs. 2 crores. Jurisdiction of Adjudicating Authorities : Section 16(2) Section 16(2) vests in the Central Government the authority for the following two matters: Appointment of Adjudicating Authority under Section 16(1) Specifying the respective Jurisdiction of the Authorities so appointed The power for the abovementioned matters are required to be exercised by the central government by publicising its order in the official Gazette . Written complaint by the Authorised officer a precondition for initiating inquiry : Section 16(3) No Adjudicating Authority shall hold an enquiry under Section 16(1) except upon a complaint in writing made by any officer authorized by a general or special order by the Central Government. In exercise of the power conferred by Section 16(3) , the central government has issued order No. 1157E, Dated 26-12-2000 to authorize the officer not below the rank of Assistant director to file compliant before Adjudicating Authority appointed under Section 16(1) for the purpose of holding inquiry under Section 16(1) . The enquiry under Section 16(1) cannot be commenced without a written compliant made in terms of section 16(3) by an officer authorised by the central government for the purposes. Appearance before the Adjudicating Authority : Section 16(4) Section 16(4) provides that the alleged contravener may represent his case before the adjudicating Authority in any of the following three alternative ways: He may appears in person. He take assistance of a chartered accountant. He may take assistance of a legal practitioner. The legal practitioner has been defined in section 2(r) read with section 2(1)(i) of the advocate Act, 1961. Adjudicating Authorities to have powers of a Civil Court : Section 16(5) Every Adjudicating Authority shall have the same powers of a civil court which are conferred on the Appellate Tribunal under section 28(2). A reference to section 28(2) shows that there are following matters in respect of which the power of civil court may be exercised: Summoning and enforcing the attendance of any person and examining him on oath; Requiring the discovery and production of documents; receiving evidence on affidavits; Receiving evidence on affidavits Subject to the provisions of section 123 and 124 of the Indian evidence act , 1872, requisitioning any public record or document or copy of such records or document from any office [section 123 and 124 of the said act respectively deal with Evidence as to affairs of State and Official communications ] Issuing commissions for the examination of witness or documents; Reviewing its decisions; Dismissing a representation of default or deciding it ex parte; Setting aside any order of dismissal of any representation for default or any order passed by the ex parte and Any other matter which may be prescribed by the Central Government. Section 16(5) also make the following two deeming provisions: (a) all proceedings before it shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, 1860 respectively dealing with Punishment false evidence and International insult or interruption to public servant sitting in judicial proceeding . (b) The Adjudicating Authority shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973. Time Limit for completing inquiry : Section 16(6) Every Adjudicating Authority shall deal with the complaint under Section 16(2) as expeditiously as possible and endeavour shall be made to dispose of the complaint finally within one year from the date of receipt of the complaint. Recording of reasons for delay in completing inquiry Provided that where the complaint cannot be disposed of within the said period, the Adjudicating Authority shall record periodically the reasons in writing for not disposing of the complaint within One year.