TMI Blog1992 (8) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act 7 of 1947, on the facts in this case, the penalty imposed is perfectly valid and legal. - 95 OF 1981 - - - Dated:- 20-8-1992 - S. RATNAVEL PANDIAN AND K. RAMASWAMY, JJ. Tulsi for the Respondent. JUDGMENT K. Ramaswamy, J. A short but interesting question of law had arisen in this case. The appellant is a firm which owned three vessels, by name M.V. Fathel Beri, M.V. Fathel Rehman and M.V. Saad Salam. It carries on export of timber, coir, etc., to Gulf countries and imported Euphraez Zabdi dates on return. Out of the amounts payable in pounds deducting the price for dates, the appellant had fitted a 230 H.P. Gardner engine (second hand) to their vessel, Fathelbari, and a 240 H.P. Kalvin engine (second hand) to their vessel, Fathel Rehman, which were purchased at the cost of Rs. 50,000 and Rs. 55,000 respectively. Out of the amount payable through Nakoda in Basrah, a sum of Rs. 30,000 was paid. For the third vessel, Saad Salam, an agreement was entered into to fit a second hand engine with Messrs. Mohd Zasim of Kuwait at a price of 2,100 Kuwaiti dinars and payable in three annual instalments. The Additional Director, Enforcement Directorate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resident outside India. . . ( b )draw, issue or negotiate any bill of exchange or promissory note or acknowledge any debt, so that a right (whether actual or contingent) to receive a payment is created or transferred in favour of any person resident outside India." Section 9(1)( a ) and ( c ) of the 1973 Act, provide thus : "9. (1) Save as may be provided in and in accordance with any general or special exemption from the provisions of this sub-section which may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in, India shall ( a )make any payment to or for the credit of any person resident outside India ; . . . ( c )draw, issue or negotiate any bill of exchange or promissory note or acknowledge any debt, so that a right (whether actual or contingent) to receive a payment is created or transferred in favour of any person resident outside India." Section 23(1) of the repealed Act prescribes penalty thus : "23. Penalty and procedure. (1) If any person contravenes the provisions of section 4, section 5, section 9, section 10, sub-section (2) of section 12, section 17, section 18-A or section 18-B or of any rule, direction or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing done' . . . under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act." Section 6 of the General Clauses Act, 1897, provides the effect of repeal thus : "Where this Act or any Central Act or Regulation made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not . . . ( e ) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment ... and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." Sri Tulsi, the learned Additional Solicitor-General, placing reliance in O. Abdul Aziz v. Addl. Director of Enforcement, AIR 1983 Mad 59 and A.K.L Labbai Thambi Maraicar v. Enforcement Directorate, AIR 1983 Mad 102, contended that in view of section 81(2) of the Act read with section 6 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e old Act continues to be operative. What remains to be done, after the Act came into force, is the quantification, if necessary after due investigation and legal proceedings and if proved to impose the penalty, forfeiture or punishment. The court takes cognizance of the offence and not the offender or the acts done. What the court is to enquire into is whether the Act is incompatible with the repealed Act and whether it manifested any contrary intentions to the repealed Act. Unless a different intention has been manifested in the Act, the repealed Act would continue to be operative. Even in a case of bare repeal accompanied by a fresh legislation on the same subject, the provisions of the new Act will have to be looked into to find where and how far the new Act envisages a contrary intention affecting the operation of section 6 of the General Clauses Act. Unless such contrary intention is manifested, the liabilities, penalties, forfeiture or punishment under the repealed Act will continue to exist and remain in force by operation of section 6 of the General Clauses Act. We have already seen that the Act did not evince any contrary intention. It merely reiterated the earlier law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of little avail to the appellant for the reason that the two Acts operate in different fields, one for contravention of the Foreign Exchange Regulation Act and the second for evasion of customs duty. The mere fact that the penalty proceedings for evasion of the customs duty had ended in favour of the appellant does not take away the jurisdiction of the enforcement authorities under the Act to impose the penalty in question. The doctrine of double jeopardy has no application. The further contention that the offence is based on no evidence is devoid of any substance. Notice was given to the appellant. In the show-cause notice contravention was brought to its notice. The appellant gave the explanation. After consideration of the facts since there was no express permission granted by the Reserve Bank of India for the payments by the appellant to the agent outside India, the contravention was proved and penalty was imposed. It is the penalty under sections 5(1)( a ) and ( b ) of the repealed Act equivalent to section 9(1)( a ) and ( c ) of the Act. Therefore, the penalty imposed is based on material, valid reasons and proper findings. Accordingly we do not find any merit to interfe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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