TMI Blog2017 (7) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry of two years from the date of commencement of FEMA – that is to say, by 31.05.2002. Since the show cause notice in the present case was issued by the adjudicating authority on 31.05.2002 which would be within the sunset clause under FEMA, its validity cannot be questioned, the fact that such show cause notice was served only in 2003 being inconsequential. Since the action was initiated within the period provided in law, delay (if any) in relation to the directions in the order of CEGAT would not render it bad. In the present case, noticeably, the statements under Section 108 of the Customs Act have been taken note of by the authorities below for recording re-assurance on the ground the same corroborated the main incriminating cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exchange Regulation Act, 1973 (FERA) was repealed and the appellate board constituted under Section 52 of the said Act was dissolved by Section 49 of the Foreign Exchange Management Act, 1999 (FEMA), it having come into force with effect from 01.06.2000. However, notwithstanding such repeal, by virtue of Section 49(5), all action taken or purported to have been taken under the repealed enactment (FERA) is envisaged to be deemed to have been taken under the corresponding provisions of the new law (FEMA) in so far as it is not inconsistent with the provisions of the latter. Further, the appeal preferred to the appellate board under Section 52(2) of erstwhile law (FERA) but not disposed of before the commencement of the new law (FEMA) was to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the employee (Jayantibhai Tribhuvandas Patel) died and the action against them thus abated. 4. The proceedings before the Collector of Customs, Mumbai under the Customs Act resulted in confiscation of the diamonds and Indian currency by order dated 03.10.1994 which, however, was set aside by (erstwhile) Customs Excise and Gold Control Appellate Tribunal (CEGAT) by order dated 03.10.2000, though referring the matter to the Enforcement Directorate for further investigation from the point of view of the provisions contained in FERA. It is against this backdrop that the Special Director of the Enforcement Directorate in the Ministry of Finance, Government of India, in exercise of its jurisdiction under the said law issued a show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt from initiating proceedings . Section 49(3) and (4) of FEMA reads as under :- 49. Repeal and saving.- (1) x x x (2) x x x (3) Notwithstanding anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under section 51 of the repealed Act after the expiry of a period of two years from the date of the commencement of this Act. (4) Subject to the provisions of sub-section (3), all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. 7. It is clear from a bare reading of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Offences by companies - (1) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a company, every person who, at the time of the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company , shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad gone by the statements which were recorded under Section 108 of the Customs Act which, having been retracted, in the submission of the appellants, were not admissible in the adjudication proceedings under FERA. Reliance is placed on a decision of a learned single judge of this court reported as Enforcement Directorate Vs. Ravi Sharma, 2003 (156) ELT 180 (Del.) and the ruling of the Supreme Court in Shanti Prasad Jain Vs. Director of Enforcement, AIR 1962 SC 1764. 12. While there can be no dispute about the fact, as was held by a Constitution Bench of the Supreme Court in Shanti Prasad Jain (supra) that the proceedings under FERA being quasi criminal in nature, the prosecuting agency has to make out a case of violation of law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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