FERA review powers and civil proof standard: review was barred, immunity was limited, and the violation was proved on probabilities.

A review under FERA was held not maintainable because the statute contained no express power of review or rectification, so the earlier appellate order could not be reopened. The claimed immunity for deposit of foreign exchange did not extend to a separate payment of equivalent Indian currency to a non-resident without permission, leaving that liability intact. On the merits, the alleged violation was proved on a civil standard: FERA proceedings require proof on preponderance of probabilities, and the surrounding circumstances supported the charge. The review applications therefore failed and the penalty findings were left undisturbed.

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Issues: (i) whether a review application was maintainable under the Foreign Exchange Regulation Act, 1973 in the absence of an express review or rectification provision; (ii) whether the immunity attached to deposit of foreign exchange protected the appellants from liability for making equivalent payment in Indian currency to a non-resident; and (iii) whether violation of section 9(l)(f)(i) was proved on the material available.

Issue (i): whether a review application was maintainable under the Foreign Exchange Regulation Act, 1973 in the absence of an express review or rectification provision

Analysis: The Tribunal noted that the authorities relied upon by the appellants arose under statutes such as the Customs Act, 1962 and the Central Excise Act, 1944, which contain provisions for rectification of mistakes. FERA contained no similar provision conferring review or rectification power. In the absence of such statutory authority, the earlier appellate order could not be reopened by review.

Conclusion: The review application was not maintainable.

Issue (ii): whether the immunity attached to deposit of foreign exchange protected the appellants from liability for making equivalent payment in Indian currency to a non-resident

Analysis: The Tribunal held that the protective legislation relied upon by the appellants covered the deposit of foreign exchange in India, but did not extend to the separate act of paying an equivalent amount in Indian currency to a person residing outside India without the requisite permission. The second limb of the charge therefore remained unaffected by the immunity claim.

Conclusion: The immunity did not bar liability for the Indian currency payment.

Issue (iii): whether violation of section 9(l)(f)(i) was proved on the material available

Analysis: The Tribunal treated proceedings under FERA as civil in nature and held that the standard of proof was not that of a criminal trial. On the facts, the appellants failed to explain any relationship with the alleged donor, and the surrounding circumstances supported the inference that the foreign exchange transaction and the corresponding Indian currency payment had occurred. The charge was therefore held established on probabilities.

Conclusion: The violation of section 9(l)(f)(i) was proved.

Final Conclusion: The review applications failed both on maintainability and on merits, and the penalty findings were left undisturbed.

Ratio Decidendi: In proceedings under FERA, a review is not maintainable without express statutory authority, and liability may be established on the civil standard of preponderance of probabilities rather than proof beyond reasonable doubt.

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