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ADJUDICATION AND APPEAL UNDER FEMA

FEMA - Foreign Exchange Management - By: - Mr. M. GOVINDARAJAN - Dated:- 4-2-2016 - Section 13(1) of the Foreign Exchange Management Act, 1999 ( FEMA for short) provides for imposing penalties by Adjudicating Authority. The said Section provides that if any person contravenes any provision of this Act, or contravenes any rule, regulation, notification, direction or order issued in exercise of the powers under this Act, or contravenes any conditions subject to which an authorization is issued by .....

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ch came into effect from 01.06.2000. Section 16 of FEMA provides that the Central Government may, by an order, published in the Official Gazette, appoint as many officers of the Central Government as it may think fit, as the Adjudicating Authorities for holding an inquiry, against whom a complaint has been made. The Central Government is also to prescribe the jurisdiction for the Adjudicating Authorities. Procedure for Adjudication The following is the procedures prescribed in the Act and Rules .....

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shall not be less than 10 days from the date of service of notice; Every notice shall indicate the nature of contravention alleged to have been committed by him; The person on whom the notice is issued shall given reply within the time prescribed; After considering the reply by such person the Adjudicating Authority is of the opinion that an inquiry should be held, he shall issue a notice fixing a date for the appearance of that person either personally or through his legal practitioner or a Cha .....

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documents or evidence as he may consider relevant to the inquiry and if necessary, the hearing may be adjourned to a future date and in taking such evidence the Adjudicating Authority shall not be bound to observe the provisions of the Indian Evidence Act; While holding an inquiry the Adjudicating Authority shall have the power to summon and enforce attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of .....

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with the provisions of Section 13 of the Act; The Adjudicating Authority, if he thinks fit in addition to any penalty direct that any currency, security or any other money or property in respect of which the contravention has taken place shall be confiscated to the Central Government; The Adjudicating Authority may direct that the foreign exchange holdings, if any of the persons committing the contraventions or any part thereof, shall be brought back into India or shall be retained outside Indi .....

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the rules, regulations, notifications, directions or orders or any condition subject to which an authorization is issued by the RBI in respect of which contravention has taken place and shall contain reasons for such decisions; Every order made shall be dated and signed by the Adjudicating Authority; A copy of the order made shall be supplied free of charge to the person against whom the order is made and all other copies of proceedings shall be supplied to him on payment of copying fee of ͅ .....

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be enforced. Section provides the procedure for enforcement of the orders of Adjudicating Authority as detailed below: If any person fails to make full payment of the penalty imposed within a period of ninety days from the date on which the notice for payment of such penalty is served on him he shall be liable to civil imprisonment; Before that the Adjudicating Authority is to issue notice and service upon the defaulter calling upon him to appear before him on the date specified in the notice a .....

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substantial part thereof and refuses or neglects or has refused or neglected to pay the same; A warrant of arrest of the defaulter may be issued by the Adjudicating Authority if the Adjudicating Authority is satisfied by affidavit or otherwise, that the object or effect of delaying the execution of the certificate the defaulter is likely to abscond or leave the local limits of the jurisdiction of the Adjudicating Authority; If the default does not appear before the Adjudicating Authority, he ma .....

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of the arrest to the officer arresting him, such officer shall at once released him; If the defaulter appears before the Adjudicating Authority he shall give the defaulter an opportunity showing cause why he should not be committed to civil prison; Pending conclusion of the inquiry, the Adjudicating Authority may, in his discretion, order the defaulter to be detained in the custody of such officer as he think fit or release him on furnishing the security to the satisfaction of the Adjudicating .....

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an amount exceeding ₹ 1 crore, up to three years; and In any other case, up to six months; The person detained shall be released if the amount is paid to the officer-in-charge of civil prison; A detention order may be executed at any place in India in the manner provided for the execution of warrant of arrest under Cr. PC, 1973. Appeal to Special Director Section 17 provides for filing appeal against the order of Adjudicating Authority to Special Director. The Central Government shall appo .....

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forty five days, if he is satisfied that there was sufficient cause for not filing it within that period; The delayed appeal shall be accompanied by a petition, in triplicate, duly verified and supported by the documents, if any, relied upon by the applicant, showing cause how the applicant had been prevented from preferring the appeal within the said period of 45 days; The appeal shall be in Form - I signed by the appellant; The appeal shall be filed in triplicate and accompanied by a fee of & .....

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, the Special Director (Appeals) shall send a copy of the appeal, together with a copy of the order appealed against, to the Director of Enforcement; The Special Director (Appeals) shall, then, issue notices to the appellant and the Director of Enforcement fixing a date for hearing of the appeal; On the date fixed for hearing or any other day to which the hearing of the appeal may be adjourned, the appellant as well as the Presenting Officer of the Directorate of Enforcement shall be heard; Any .....

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l Director (Appeals) shall be in writing and shall state briefly the grounds for the decision; The order of Special Director shall be signed by the Special Director (Appeals) hearing the appeal; The Special Director (Appeals) shall send a copy of every order made by him to the parties to appeal and to the concerned Adjudicating Authority. Appeal to Appellate Tribunal Section 18 of the Act provides that the Central Government shall, by notification, establish an Appellate Tribunal to be known as .....

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od of 45 days from the date on which a copy of the order made by the Adjudicating Authority or the Special Director is received; The appeal shall be in Form II signed by the applicant; The appeal shall be in triplicate by a fee of ₹ 10,000/- in the form of cash or demand draft payable in favor of the Registrar, Appellate Tribunal for Foreign Exchange, New Delhi; While filing the appeal, the appellant is to deposit the penalty imposed against him; Where in any particular case, the Appellate .....

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ate, duly verified and supported by the documents, if any, relied upon by the applicant, showing cause how the applicant had been prevented from preferring the appeal within the said period of 45 days; The appeal shall set forth concisely and under distinct heads the grounds of objection to the order appealed against without any argument of narrative and such grounds shall be numbered consecutively; and shall specify the address for service at which notice or other processes may be served on the .....

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other day to which the hearing of the appeal may be adjourned, the applicant or the presenting officer fail to appeal when the appeal is called on for hearing, the Appellate Tribunal may decide the appeal on the merits of the case; The order of the Appellate Tribunal shall be in writing and shall state briefly the grounds for the decision; The order shall be signed by the Chairman or Member of the Appellate Tribunal hearing the appeal; The appeal shall be disposed within 180 days from the date o .....

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