GST Helpdesk   Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
GST - Acts GST Rules SGST - Acts GST Rates CGST Notif. SGST Notif. Customs Tariff Exempt Income
Extracts
Home List
← Previous Next →

2014 (8) TMI 1105 - MADRAS HIGH COURT

2014 (8) TMI 1105 - MADRAS HIGH COURT - TMI - Complaint filed under Section 16(3) FEMA - Writ of mandamus to forbear the respondent from proceeding further with the adjudication in pursuance of a show cause notice, without complying with a particular Rule - Held that:- The scheme of Section 4 actually provides opportunities at the every stage to the noticee. The forming of an opinion at the stage of show cause notice and receipt of reply, as provided in sub-rule (3) of Rule 4, is almost akin to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e up with the above writ petition, the stage of Rule 4(3) had already been passed. The enquiry had actually come, at the time when the petitioner moved this Court, to the stage of Rule 4(8). Therefore, it is not possible now to put the clock back or rewind the proceedings back to the stage of Rule 4(3). - After all, the requirement of Rule 4(3) even if the interpretation given by the Division Bench of the Bombay High Court [2013 (8) TMI 435 - BOMBAY HIGH COURT] is taken to be correct, should .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

us to forbear the respondent from proceeding further with the adjudication in pursuance of a show cause notice, without complying with a particular Rule. 2. Heard Mr.S.Ramachandran, learned counsel for the petitioner and Mr.M.Dhandapani, learned Standing Counsel for the respondent. 3. The petitioner was issued with a show cause notice dated 14.02.2011, by the respondent, on the basis of a complaint filed under Section 16(3) of the Foreign Exchange Management Act, 1999. The petitioner filed his r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

al) Rules, 2000, the adjudicating authority is liable to form an opinion and record the reasons for such opinion, before initiating the enquiry, after the issue of a show cause notice and the receipt of the reply. A Division Bench of the Bombay High Court interpreted Rule 4(3), in Shachank Vyankatesh Manohar vs. Union of India, 2013 (5) ALL MR 551 to mean that after the issue of show cause notice and the receipt of objections, the adjudicating authority is required to apply his mind to the objec .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in law. 5. I have carefully considered the above submissions. Before taking up the said legal issue for consideration, it would be useful to have on record certain dates and events which are as follows:- 1. The show cause notice was issued on 14.02.2011. The petitioner did not submit his reply. 2. A call notice was issued on 14.12.2012 for a personal hearing. The petitioner appeared through advocate and sought adjournment to the month of March 2013. 3. A call notice dated 16.01.2013 was issued, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of seizure. 7. The order dated 06.06.2013 was challenged by the petitioner in W.P.No.18096 of 2013. But the writ petition was dismissed on 30.08.2013. The petitioner filed a writ appeal in W.A.No.2034 of 2013. 8. Since there was no stay in the writ appeal, a fresh call notice was issued on 23.04.2014 fixing the date of hearing on 20.05.2014. The hearing was later adjourned to 29.05.2014. The petitioner sought adjournment and the hearing got postponed to 30.06.2014. Since an adjournment was soug .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rgued the case and the respondent reserved orders. 7. In the meantime, the above writ petition came up for hearing on 04.08.2014. On the said day, the counsel for the respondent took notice. Since he took notice, the respondent has not so far passed any order on the proceeding. 8. Keeping the above consequences and events in mind, let us have a look at Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000, which reads as follows:- "4. Holding of inquiry .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ontravention alleged to have been committed by him. (3) After considering the cause, if any, shown 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 chartered accountant duly authorised by him. (4) On the date fixed, the Adjudicating Authority shall explain to the person proceeded against or his legal practitioner or the chart .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to the inquiry and if necessary, the hearing may be adjourned to future date and in taking such evidence the Adjudicating Authority shall not be bound to observe the provisions of the Indian Evidence Act, 1872 (1 of 1872). (6) While holding an inquiry under this rule 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 1 opinion of the Adjudi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tted the contravention, he may, be order in writing, impose such penalty as he thinks fit, in accordance with provisions of Sec. 13 of the Act. (9) Every order made under sub-rule (8) of the rule 4 shall specify the provisions of the Act or of the rules, regulations, notifications, direction or orders or any condition subject to which an authorisation is issued by the Reserve Bank of India in respect of which contravention has taken place and shall contain 2[***] reasons for such decisions. (10) .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

areful look at the provisions of sub-rules (1) to (12) of Rule 4 would show that the enquiry by the respondent, comprises of five stages, which are as follows:- 1. The issue of show cause notice of a duration of not less than ten days, calling upon the person to show cause as to why an enquiry should not be held, for any contravention. 2. The issue of a notice fixing the date for the appearance of the person, if after considering the cause shown by the person to the show cause notice, the adjudi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version