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TMI Blog2024 (12) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... c Goods, Floppy drive, CD-ROM, Dot matrix Print Head, electronic goods etc. through State Bank of Travancore; State Bank of India; Standard Chartered Bank; State Bank of India, Industrial Finance Brach, but the said Company failed to submit Bills of Entry for the said import. The details of the remittance are as below: (a) Details of remittance of foreign exchange effected through State Bank of Travancore, Residency Road ranch, Bangalore. Sl. No. Date of remittance Sum remitted in foreign currency Equivalent to Indian Currency 1. 23.5.00 US $ 7695.95 Rs.3,30,926/- 2. 13.11.00 US $ 21596 Rs.9,28,628/- 3. 4.12.00 US $ 37538 Rs.17,60,509/- 4. 22.12.00 US $ 18949 Rs.8,14,807/- 5. 17.01.01 US $ 20000 Rs.8,60,000/- 6. 20.01.01 US $ 20000 Rs.8,60,000/- 7. 23.01.01 US $ 12000 Rs.5,16,000/- 8. 05.02.01 US $ 11284 Rs.4,85,212/- 9. 12.02.01 SGD 40401 Rs.10,92,836/- 10. 24.2.01 US $ 64000 Rs.27,52,000/- 11. 27.2.01 US $ 231625 Rs.99,59,875/- 12. 02.03.91 US $13858.65 Rs.5,92,922/- 13. 05.03.01 US $29520.72 Rs.12,67,477/- 14. 07.03.01 US $37229 Rs.12,69,477/- Total Rs.2,38,27,039/- (b) Details of remittance of for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d further stated that S/Shri P.M. Sinha and B. C. Prabhakar are the Directors of the company during the relevant period of imports. Noticee no.1, vide their letter dated 6.1.2009 had enclosed two letters both dated 28.11.08 of State Bank of Travancore, Residency Road branch, Bangalore, wherein the bank had confirmed that the relevant Bills of Entry have been submitted by that Company in respect of above mentioned 14 remittances. Noticee 1, through their further letter dated 26/5/2009 had stated that they had already submitted the Exchange Control copy of the Bill of entry to State Bank of India, Peenya branch Bangalore, but could not trace the copy of acknowledgements obtained from in respect of remittances made through them as the same were misplaced during shifting of their office and had enclosed the certificates obtained from the Chartered Account as an alternate proof in lieu of Bills of Entry, certifying that the goods have been received in India from various overseas. Standard Chartered Bank, Trade Services, M.G. Road, Bangalore, vide their letter dated 25/9/2010 had reiterated that Noticee no.1 had not submitted Bills of Entry in respect of remittances effected through t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der and as to why penalty as provided under section 13(1) of FEMA should not be imposed on them. In response to the Show Cause Notice issued to the Noticees, the Noticee no.1 submitted reply dated 13/06/2013, inter alia, contending that Noticees had not contravened the provisions of FEMA as alleged in the Show Cause Notice and requested the Adjudicating Authority not to initiate Adjudication Proceedings and sought opportunity to be heard in person, in case the Adjudicating Authority decides to proceed further. Replies were filed on behalf of Noticee 2 & Noticee 3 by their advocate vide individual letters dated 12/06/2013, inter alia, denying the charges contained in the show cause notice. Being not satisfied with the reply to the Show Cause Notice, the Adjudicating Authority decided to hold the Adjudicating proceedings as per Section 16 of FEMA. After perusal of the documents on record and hearing the rival submission, and thereby satisfied that the Company M/s Wipro Ltd. failed to file any proof of import with respect to following 5 remittances sent through ANZ Grindlays Bank : - Sl. No. Date of remittance Amount remitted in foreign currency 1. 10.07.00 US $ 30000 2. 23. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the two remittances for USD 30000 and USD 8550 (total USD 38550), as the matter pertains 1314 years prior to the passing of the impugned order. She stressed that Appellant M/s Wipro Ltd. cannot be penalized for the negligence on the part of the erstwhile ANZ Grindlays Bank for not sending the intimation to RBI regarding the import of goods, or, alternatively, lapse on the part of the RBI for not noting the information from the concerned bank and for not properly maintaining its record. She argued that seeing the fact that out of 35 instances Appellant Company is able to prove the import of goods with respect to 30 instances during the investigation of the case and out of the remaining five remittances, appellant is filing the proof of imports qua the three instances before this Appellate Tribunal. She contended that just because Appellant Company is unable to trace out and file the proof qua the remaining two instances for total sum of USD 38550, benefit of doubt needs to be given to the Appellant Company on account of lapse on the part of the erstwhile ANZ Grindlays Bank, seeing the fact that even successor Bank i.e. Standard Chartered Bank stated that the said bank is not in poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... caused to them on account of the delay. Further, since FEMA,1999 is a self-contained law, thus, all the references are to be construed from the Act itself and not otherwise (as held in the case of Kanwar Natwar Singh v. Directorate of Enforcement (2010)13 SCC 255 and Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement and Anr. AIR 2010 SC 2239) and since no statutory time period has been prescribed for issuance of a SCN, and adverse inference cannot be drawn in relation to the same. Also, it has been held in the case of Telestar Travels Pvt. Ld. and Ors. v. Special Director of Enforcement (2013) 9 SCC 549 that the delay by itself cannot constitute a ground for settling aside the order that may otherwise be found to be valid. Its relevant extract is reproduced as hereafter: "Even so, the question remains whether delay by itself should constitute a ground for setting aside the order that may otherwise be found legally valid and justified. Our answer to that question is in the negative. The decision of this court in Ram Bali v. State of U.P. MANU/SC/0345/2004 : (2004) 10 SCC 598 is one such case where the court repelled a similar argument and declared that delay was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittances, and accordingly, the complaint was filed before the Adjudicating Authority for the remaining five instances pertaining to only ANZ Grindlays Bank. Out of the said five remittances, the appellant was able to furnish the invoices, packing list and airways bill copies for the three remittances, for sum of USD 37100, USD 185500 & USD 222600 to prove the import of electronic goods which are annexed with the present appeal, at page 92 to 96, 97 to 100, 101 to 105 respectively. Out of the said bunch of documents, the Air Way Bills & Air Cargo Arrival Notice-cum-Invoices clearly reflects the name of consignee as ANZ Grindlays Bank Ltd. and also notified to importer M/s Wipro Ltd. Therefore, it points towards a direction that said bank was duly intimated regarding the import of consignments, qua three remittances. Therefore, the lapse on the part of the said bank (if any) for not intimating the RBI is no ground to presume the contravention on the part of the Appellant Company, simply because the Appellant Company was unable to trace out the remaining import documents of the 2 remittances for USD 30000 and USD 8550 (total USD 38550), as the matter pertains 13-14 years prior to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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