2017 (6) TMI 957 - HC - FEMA

Court upholds penalties under FEMA Section 13 for foreign exchange violations

The High Court upheld the penalties imposed by the Special Director of Enforcement, Delhi, on a company and its Managing Director under Section 13 of ... Non release and repatriate to India any foreign exchange which is due or accrued - Whether the company had failed to take all reasonable steps within the prescribed period, to release and repatriate to India, any foreign exchange which is due or accrued to it and in failure to do so, the department shall proceed, as per Section 8 of the Act, read with Regulation 3 of the Foreign Exchange Management (Realization, Repatriation and Surrender of Foreign Exchange) Regulations 2000 ? Held that:- The company should take all reasonable steps to release and repatriate to India, the entire amount due in US dollars within such period and in such manner as stated by the Reserve Bank of India. In the case on hand, the department states that the company had obtained no permission from the Reserve Bank of India, under Section 42 of FEMA. Therefore, any violation to section 42 of the Act, the provisions of FEMA would attract against the company. No material has been produced before this Court as to what steps have been taken to realise the amount, within the stipulated period. The company was not able to place any material to show the reason for the failure to realise the said amount within the stipulated period, or any permission for extension of period has been obtained from the Reserve Bank of India, as contemplated under Section 42 of the FEMA. In the absence of any such orders from the Reserve Bank of India, the contention of the company cannot be accepted. Therefore, as the company has not complied with the provisions of FEMA, the action initiated by the department, for violation of FEMA is in consonance with the provisions of law. In view of the above, the Tribunal has lost its sign to consider the above said provisions of law, in allowing the appeals. Therefore, we have no hesitation to interfere with the orders passed by the Tribunal and hence the same is liable to be set aside. Issues Involved:1. Jurisdiction of the Enforcement Directorate's Mumbai branch to investigate the company.2. Compliance with Section 8 of the Foreign Exchange Management Act (FEMA), 1999.3. Validity of the penalties imposed by the Special Director of Enforcement, Delhi.4. Adherence to principles of natural justice.5. Refund of pre-deposited penalty amount as directed by the Appellate Tribunal for Foreign Exchange.Issue-wise Detailed Analysis:1. Jurisdiction of the Enforcement Directorate's Mumbai Branch:The company challenged the jurisdiction of the Mumbai branch of the Enforcement Directorate to investigate the matter. The High Court noted that, under FEMA, there is no bar for any Zonal Office to take up cases for investigation. The Enforcement Directorate has the power to investigate all over the country with the assistance of its branches and other allied departments. Therefore, the investigation conducted by the Mumbai Zonal Office was within its powers, and the show cause notice issued by the Special Director of Enforcement, Mumbai, was deemed maintainable.2. Compliance with Section 8 of FEMA, 1999:The core issue was whether the company failed to take all reasonable steps to realize and repatriate foreign exchange to India as required under Section 8 of FEMA, read with Regulation 3 of the Foreign Exchange Management (Realization, Repatriation, and Surrender of Foreign Exchange) Regulations 2000. The company argued that it had taken all reasonable steps to realize its dues from overseas customers and repatriate the foreign exchange to India. However, the High Court found that the company did not provide sufficient evidence to show that it had taken all necessary steps or obtained any permission from the Reserve Bank of India for the delay in realization. Therefore, the company was found to be in violation of Section 8 of FEMA.3. Validity of the Penalties Imposed:The Special Director of Enforcement, Delhi, imposed penalties of Rs. 4 crore on the company and Rs. 1 crore on its Managing Director under Section 13 of FEMA. The Appellate Tribunal for Foreign Exchange quashed these penalties, stating that the department failed to provide material evidence against the company. However, the High Court reinstated the penalties, emphasizing that the company did not comply with the provisions of FEMA and did not take reasonable steps to realize and repatriate the foreign exchange.4. Adherence to Principles of Natural Justice:The company contended that the investigation and the subsequent order of penalty were conducted without adhering to the principles of natural justice. The High Court noted that the company was given ample opportunity to present its case before the Special Director of Enforcement, Delhi. The investigation and adjudication process were found to be in compliance with the principles of natural justice.5. Refund of Pre-deposited Penalty Amount:The Appellate Tribunal for Foreign Exchange directed the Enforcement Directorate to refund the pre-deposited penalty amount within 30 days. However, since the High Court set aside the Tribunal's order and restored the penalties imposed by the Original Authority, the company's writ petition seeking a refund of the pre-deposited penalty amount was dismissed.Conclusion:The High Court set aside the order of the Appellate Tribunal for Foreign Exchange and restored the penalties imposed by the Special Director of Enforcement, Delhi. The company's writ petition for a refund of the pre-deposited penalty amount was dismissed. The High Court emphasized that the company failed to comply with the provisions of FEMA and did not take all reasonable steps to realize and repatriate the foreign exchange to India.