TMI Blog2008 (9) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... Siddhartha Mitra and Ms. Mousumi Chatterjee for the Appellant. Souvik Nandy for the Respondent. JUDGMENT Pinaki Chandra Ghose, J. - This appeal is against an order and/or judgment dated 6-7-2007 passed by the Learned Appellate Tribunal. 2. The facts of this case briefly are as follows : An order was passed by the Special Director (Appeals) Foreign Exchange Management Act forming a common adjudication order dated 30-12-2004 where the adjudicating authority imposed penalty of Rs. 10 lakhs against the appellant company and Rs. 10 lakhs against the appellant Managing Director for contravention of section 10(6) of Foreign Exchange Management Act, 1999 (hereinafter referred to as the said Act ) on the ground that the appellants after taking remittances of foreign exchange of US Dollars 35766 and FRF 374000 on 18-4-2000 and 19-6-2000 respectively 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported and had failed to submit the Bill of Entry relating to the said import as the import formalities end with the submission of the Bill of Entry. 8. An appeal was filed from the said order which was dismissed on 13-6-2005 and the appellant was asked to pay penalty of Rs. 10 lakhs and thereafter an appeal was preferred before the learned Tribunal which was also dismissed. 9. According to the appellant/petitioner, the appellant did not contravene the requirement of section 10(6) of the said Act since the foreign exchange remitted was used for import of refrigerating machinery and, therefore, the foreign exchange was used for the declared purpose only and not for any other purpose. The appellant was unable to take delivery of the goods and submitted the Bill of Entry as the Appellant and Managing Director, who had taken over charge of the appellant-company in 2002, were not aware of 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19-6-2000 - 24,72,140 12. On the basis of the same, enquiries were initiated and the directives were issued to the importer and the authorised dealer, Canara Bank, Foreign Exchange Department, 2/1, Russel Street, Kolkata. 13. The Canara Bank thereafter informed by their letter dated 3-1-2001 that the Exchange Control copy of the Bill of Entry was not submitted by the importer in respect of the remittances US Dollars 35766 dated 18-4-2000 and FRF 374000 dated 19-6-2000 respectively. Subsequently, upon enquiry it was revealed that two nos. of Refrigerating machinery for FF 374000 were imported by the party from M/s. Carrier Corporation NY, U.S.A. but the consignment was not cleared and goods were then shifted to Bengal bonded warehouse. 14. In the meantime, the Management of the Company along with all assets and liabilities shifted from Shri Aniruddha Roy Chowdhury, s/o Late J.N. Roy Chowdhury to Shri Suborno Bose, s/o Late Subal Chandra Bose through a Memorandum of Understanding (hereinafter referred to as MOU) 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 clause ( c ) of sub-section (2) of section 47 of the Foreign Exchange Management Act, 1999 (42 of 1999), the Reserve Bank makes the following regulations relating to the manner of, and the period for, realisation of foreign exchange, repatriation of realised foreign exchange to India and its surrender, namely : 1. Short title and commencement. ( i ) These regulations may be called the Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulations, 2000. ( ii ) They shall come into force on 1st day of June, 2000. 2. Definitions. In these regulations, unless the context requires otherwise, ( i ) Act means Foreign Exchange Management Act, 1999 (42 of 1999); ( ii ) authorised dealer means a person authorised as an authorised dealer under sub-section (1) of section 10 of the Act; ( iii ) foreign exchange due means the amount which a person has a right to receive or claim in foreign exchange; ( iv ) surrender means the selling of foreign exchange to an authorised person in India in exchange of rupees; ( v )the words and expressions used but not defined in these regulations shall have the same meanings respectively assign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich purchase or acquisition of foreign exchange is permissible under the provisions of the Act or the rules or regulations or direction or order made thereunder, shall surrender such foreign exchange or the unused portion thereof to an authorised person within a period of sixty days from the date of its acquisition or purchase by him. (2) Notwithstanding anything contained in sub-regulation (1), where the Foreign Exchange acquired or purchased by any person from an authorised person is for the purpose of foreign travel, then, the unspent balance of such foreign exchange shall, save as otherwise provided in the regulations made under the Act, be surrendered to an authorised person ( i )within ninety days from the date of return of the traveller to India, when the unspent foreign exchange is in the form of currency notes and coins; and ( ii )within one hundred eighty days from the date of return of the traveller to India, when the unspent foreign exchange is in the form of travellers cheques. 7. Exemption. Nothing in these regulations shall apply to foreign exchange in the form of currency of Nepal or Bhutan." 20. Hence, if the appellant is unable to comply with thes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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