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TMI Blog2008 (9) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... for import of refrigeration machinery so as to use the same in Hotel Industry in fact failed to do so and also failed to file the proofs thereof. 3. It further appears that the appellant-company filed an appeal before the Learned Tribunal and was allowed to make a pre-deposit of 25 per cent of the said penalty and the Appellant Managing Director was also allowed to make pre-deposit of 15 per cent of the amount of such penalty by an Order dated 23-9-2005 passed by the Learned Tribunal and it further appears from the fact that the appellants duly complied with the said order. 4. It is the case of the appellant/petitioner that one Mr. Aniruddha Roy Chowdhury and his associates, being the original promoters, with the objective of setting up of a 3-star category hotel in the Salt Lake Electronics Complex, promoted the appellant-company M/s. Zoom Enterprises Ltd. in the year 1995. The appellant imported refrigeration machinery from Carrier SA, France in the year 2000. Upon import of the first consignment on 15-3-2000, the goods were assessed by the Customs Authority in Calcutta but before the goods could be cleared by paying up the necessary duties, the erstwhile promoters ran into se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the terms of the EPCG License relating to the import of goods in the year 2000. 10. The attention of this Court was drawn to section 42(1) of the said Act and it was submitted that a person shall not be liable to punish if he proves that the contravention took place without the knowledge and where due diligence has been challenged to prevent such contravention. Sections 10(6) and 42(1) of the said Act are reproduced hereunder : "Section 10(6) - Any person, other than an authorised person, who has acquired or purchased foreign exchange for any purpose mentioned in the declaration made by him to authorised person under sub-section (5) does not use it for such purpose or does not surrender it to authorised person within the specified period or uses the foreign exchange so acquired or purchased for any other purpose for which purchase or acquisition of foreign exchange is not permissible under the provisions of the Act or the rules or regulations or direction or order made thereunder shall be deemed to have committed contravention of the provisions of the Act for the purpose of this section. Section 42 Contravention by Companies.-(1) Where a person committing a contravention of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 22-10-2001. 15. It further appears from the fact that though the order was placed by the earlier management and the goods also arrived at the time of earlier management yet as per the terms of the MOU, the duties and warehouse charges were to be paid by the new management, which however, failed to take delivery of the goods and as such could not file the exchange control copy of the Bill of entry as per the provision of section 10(6) of the said Act read with sections 46 and 47 of the said Act, with para A10 and para A11 of the Foreign Exchange Manual, 2003-04. 16. It is further submitted that the company failed to comply with all these provisions. Then, the complainant sought permission from the adjudicating authority to issue show-cause notice which was granted and subsequently, the steps were taken by the authorities in accordance with the provisions of law. Reply was also given to the show-cause notice which was duly considered by the department. A corrigendum was also issued to the show-cause notice dated 19-5-2004 by making three amendments to the said show-cause notice. By the said amendment the present respondent have added section 42(1) of the said Act since it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons used but not defined in these regulations shall have the same meanings respectively assigned to them in the Act. 3. Duty of persons to realise foreign exchange due.-A person resident in India to whom any amount of foreign exchange is due or has accrued shall, save as otherwise provided under the provisions of the Act, or the rules and regulations made thereunder, or with the general or special permission of the Reserve Bank, take all reasonable steps to realise and repatriate to India such foreign exchange, and shall in no case do or refrain from doing anything, or take or refrain from taking any action, which has the effect of securing- (a )that the receipt by him of the whole or part of that foreign exchange is delayed; or (b )that the foreign exchange ceases in whole or in part to be receivable by him. 4. Manner of Repatriation.-(1) On realisation of foreign exchange due, a person shall repatriate the same to India, namely bring into, or receive in, India and- (a )sell it to an authorised person in India in exchange for rupees; or (b )retain or hold it in account with an authorised dealer in India to the extent specified by the Reserve Bank; or (c )use it for discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant is unable to comply with these requirements under FEMA and RBI authorized dealer, approval is necessary. It is further pointed out that the Management although changed in the year 2001, but the Chairman, Sri Aniruddha Roy Chowdhury remained Director to the Company till 2004. 21. It is further pointed out that the appellate authority has found that from the MOU dated 22nd October, 2001, the Appellate Company was transferred from old management to the new management after the shares were transferred for about six crores of rupees. In respect of the availability of fund the appellate company did not take any steps to take delivery of the said imported goods which was lying in the warehouse since 2000. 22. It is further submitted that the appellate-company and its Managing Director were responsible for the running of the Company and did not take reasonable steps for delivery of the imported goods. 23. It is submitted that the violation of the provisions of section 10(6) of the said Act is a continuing offence. After initial committal, which is a violation, continue till the time, compliance is made. Thus, though the appellant has taken over the charge of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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