TMI Blog2018 (5) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... conscious disregard of the law, none of which are present in the present case. On the contrary there is no violation of section 10(6) or any other provisions of FEMA or regulations thereunder and the current management of the appellant (which has taken over the affairs of the appellant 12 years after the alleged contravention in 2000), has all along acted in a bona fide manner and is not guilty of any contravention or any dishonest conduct. By Order dated 02.02.2018, the interim application of the appellant was allowed and thereafter the present appeal was heard. For the above such facts and reasons, the order passed by the Adjudicating Authority is not sustainable in law. - MP-FE-42/MUM/2017(Misc.) & FPA-FE-5-MUM/2016 - - - Dated:- 4-5-2018 - Justice Manmohan Singh Chairman For the Appellant : Shri C.D. Mulherkar, Advocate For the Respondent : Shri Pankaj Yadav, Legal Consultant JUDGEMENT MP-FE-42/MUM/2017(Misc.) FPA-FE-5-MUM/2016 1. The above-mentioned appeal has been filed against the Order no. ADJ/01/B/JD/SK/2016/FEMA/204 dated 2nd March, 2016 passed by the Adjudicating Authority who imposed the penalty against upon the appellant for a sum of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D were provided by Godrej Boyce Mfg. Co. Ltd. by its letter dated 27.09.2012. 5. A letter dated 11.10.2012 was then issued by the ED to the appellant asking it to provide the Bills of Entry for the remittances listed in paragraph 3 above. 6. By its letter dated 07.11.2012, the appellant, after obtaining confirmation from the authorized dealer was able to provide documents pertaining to remittances at serial Nos. 1 2 of the table in paragraph 3 above. 7. As regards the remaining three remittances, the appellant informed the ED that as the matter pertained to more than 13 years earlier, the appellant was not in a position to produce the documents. 8. On 28.03.2013, the Assistant Director filed a complaint under section 16(3) of the FEMA regarding the remittances at S. No. 3, 4 and 5 of the table in paragraph 3 above i.e. regarding the following documents:- S. No. Bank Curr- ency Indian Value(Rs.) Foreig Value ($) Date of remittance Ref. No. 1. HDFC Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h respect to US$ 299,533 on the ground that the original was required to be produced. 14. By its letter dated 22.02.2016, the appellant requested the Deputy Commissioner of Customs for the issue of certified duplicate copy of the Bill of Entry with respect to remittance ofUS$ 299,533. The Deputy Commissioner of Customs verbally informed the appellant that tracing a Bill of Entry for a period prior to 2006 would take a long time and that there was no certainty whether it would be traced. 15. It is admitted position that on 02.03.2016, the appellant appeared before the Adjudicating Authority and requested for further time and attempted to submit a letter dated 29.02.2016 in this regard along with a copy of the request made to Customs department for certified duplicate copy of the Bill of Entry regarding remittance of US$ 299,533. 16. The case of the appellant is that on 3rd March, 2016 when the appellant counsel admitted to submit the letter, as directed, he was informed that the impugned order had already been passed. The said letter was not taken on record. After receiving the order, the present appeal has been filed. 17. It is not denied by the respondent that the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor is the complete or original record pertaining to the 13 year old transaction available with the appellant. Even otherwise, it is well settled law that non-filling of the original of the Bill of Entry is only a procedural irregularity and does not amount to a contravention of section 10(6) of FEMA, more so when the fact of import is not disputed, as evidenced from the endorsement of the customs authorities in the photocopy of the Bill of Entry submitted by the appellant. 21. There is no law that required the appellant to maintain original documents for a period of 12 years after the remittance took place. Even financial statues such as the Income Tax Act only require maintenance of records for a period of 7 years. 22. Even an authorized dealer of foreign exchange is only required to maintain its records for a period of one year from the date of their verification. Consequently, the authorized dealer in the present case, i.e. HDFC Bank, was also unable to provide any documents when requested by the appellant. 23. There is no legal impediment whatsoever in the Adjudicating Authority accepting the photocopy of the Bill of Entry in case the original is lost and/or not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e foreign exchange have been brought into India. 26. The photocopy of the Bill of Entry provided by the appellant carries the signature and endorsement of the relevant customs officer, clearly evidencing that the relevant import has taken place. 27. It is well settled by the Hon ble Supreme Court in the case of Hindustan Steel Ltd v State of Orissa (1972) 83 ITR 26 that a penalty will not be imposed for a mere technical breach or even because it is lawful to do so unless the party on whom the penalty is imposed, acts in deliberate defiance or the law or is guilty of contumacious or dishonest conduct or acts in conscious disregard of the law, none of which are present in the present case. On the contrary there is no violation of section 10(6) or any other provisions of FEMA or regulations thereunder and the current management of the appellant (which has taken over the affairs of the appellant 12 years after the alleged contravention in 2000), has all along acted in a bona fide manner and is not guilty of any contravention or any dishonest conduct. 28. By Order dated 02.02.2018, the interim application of the appellant was allowed and thereafter the present appeal was heard. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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