TMI Blog2019 (1) TMI 980X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent especially at Para 16 are unsustainable. In this regard, the submissions of the Appellants in their Appeals, Stay Applications and the common Synopsis are reiterated. Prima facie it is of the view that the respondent has no jurisdiction to reinterpret the terms of the agreement between Google Ireland and Google India. Undue hardship that will be caused to the Appellants if they are made to make a deposit of any part of their respective penalty which is without basis in law and in any event highly disproportionate to the bona fide actions of the Appellants. In the present case, the RBI has specifically allowed the settlement of dues from FEMA angle In the light of the prima facie has been made by the appellant and the appellant will suffer hardship if the appellant is asked to deposit the penalty amount. After having through the facts and material placed on record, I am of the opinion that the chances of success of appeal are more than the failure of appeal. Thus, the prayer is allowed. M.P is disposed of. There shall be a stay of operation of the impugned order till the final decision of appeals. - MP-FE-254/CHN/2018 (E.H.) MP-FE-131/CHN/2018 (Stay) FPA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods. 8. It is the case of the appellant that both transactions do not involve any borrowings or lending in foreign exchange in any form under Section 6(3)(d) of FEMA as:- - No loan agreements stipulating a draw down and repayment schedule between the parties. - No understanding, express or implied, between the parties for a deferred payment of dues. - Interest was neither charged nor paid by the Appellant in both cases. - No pecuniary gain to the Appellant due to delayed repatriation. 9. It is not denied by the respondent that the dues were ultimately in the present transaction(s) were settled as per the Master Circular on Imports. The delay is opposed by the respondent who states that RBI could not condone it and being an independent Authority, the appellant have to be deal with breach of provisions of FEMA as the same were not paid within the prescribed period of time. It is not denied on behalf of the respondent that the provisions of FEMA prohibit transfer of Foreign exchange to any person other than the authorized person unless provided for under FEMA or with the general or special permission of the RBI.- Section 3(a) read with Section 3(b) of the FEMA. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred payment arrangements. It is also submitted that nothing contrary has been discovered by the respondent after independent investigation. Thus, the decision taken by the RBI was as per law and the question of violations of any provisions does not arise. 15. In reply it is stated on behalf of appellant that the Appellants in their application have not only pleaded prima facie case, but also balance of convenience and undue hardship that would be caused to it if the stay is not granted. 16. It is settled law that being as Special Act, no authority does have jurisdiction to re-interpret and / or restrict the Permissions granted by the RBI in exercise of its jurisdiction under S.3 read with S.11 of FEMA. LIC v. Escorts (1986) 1 SCC 264 @ Para 84 . 17. Prima facie I am of the view that since nothing contrary has been establish by the respondent in its investigation. Therefore, it is contended on behalf of the appellant that once the permission has been granted by the RBI, the delay stood regularized and there are no violations of the provisions of FEMA. At this stage the presumption is in favour of the appellant that RBI must have been satisfied while condoning th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s if they are made to make a deposit of any part of their respective penalty which is without basis in law and in any event highly disproportionate to the bona fide actions of the Appellants. 24. The decision of Monotosh does not have bearing in the facts and circumstances of the present case. Without prejudice to any of the aforesaid, if anything, the decision in Monotosh Saha actually supports the contentions of the Appellant inasmuch as the Hon ble Supreme Court has held that it is undesirable to require the assessee to pay full or substantive part of the demand if it appears that such demand has no leg to stand upon. The relevant extract from the Respondent‟s own cited case is reproduced below:- 8. It is true that on merely establishing prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand [Emphasis supplied]. 25. In grounds of the appeal, the appellant has alleged that in the present case, the reply to the Complaint was filed vide letter dated 17.08.2015. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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