2018 (10) TMI 1015 - AT - FEMA

Tribunal sets aside FEMA penalty due to procedural errors

The Tribunal allowed both appeals, setting aside the penalty imposed under FEMA due to discrepancies in the proceedings, lack of clarity in charges, and ... Penalty on the co-appellant on the charge of violation of Section 3(b), 3(d) and 3(c) of FEMA - Held that:- It is stated on behalf of the appellants that ED without conducting any independent inquiry has simply on the basis of few documents sent by DRI issued a show cause notice to the appellants for alleged under-valuation of furniture imported from China during the year 2006-07 and thereby alleging violation of the provisions of section 3(b), 3(d) and 3(c) of the Foreign Exchange Management Act, 1999 (“the Act”) read with Section 42(1) of the Act. The show cause notice relied solely on the DRI case which had been settled and closed by the Settlement Commission in 2009 itself. Initiation of proceedings is incorrect when the issue has already been settled by the Settlement Commission. This is against the statutory mandate laid down under provisions of Section 127J of the Customs Act, 1962 which stipulates that no matter covered by such orders shall be reopened in any proceedings under this Act or under any other law for the time being in force. Appeal allowed. Issues:1. Imposition of penalty under FEMA for violation of Section 3(b), 3(d) and 3(c)2. Allegation of undervaluation of imported goods3. Settlement of case by Settlement Commission4. Initiation of investigation by Directorate of Enforcement after settlement5. Allegations of unauthorized financial transactions under FEMAAnalysis:Issue 1: Imposition of penalty under FEMA for violation of Section 3(b), 3(d) and 3(c)The appeal was filed against the penalty imposed on the appellants for violating Section 3(b), 3(d) and 3(c) of FEMA. The charges were based on the alleged undervaluation of imported furniture from China and unauthorized financial transactions. The appellant denied the allegations and requested cross-examination of witnesses, which was denied. The respondent argued that mere retractions do not absolve the burden of proof, and the charges were well established. However, the Tribunal found discrepancies in the proceedings and lack of clarity in the charges specified, leading to the appeal being allowed and the penalty set aside.Issue 2: Allegation of undervaluation of imported goodsThe Directorate of Revenue Intelligence (DRI) conducted an investigation against the appellants for under-valuation of imported goods from China. The appellants contested the allegations and the Managing Partner retracted his custodial statements. The case was settled by the Settlement Commission for customs duty, but later, the Directorate of Enforcement initiated a separate investigation under FEMA based on the DRI's notice. The appellant consistently denied undervaluation, and the Tribunal noted the lack of independent investigation under FEMA.Issue 3: Settlement of case by Settlement CommissionThe appellants approached the Settlement Commission to settle the case with the aim of avoiding prolonged litigation with the department. The case was settled by the Settlement Commission, and the appellants complied with the settlement terms by depositing the required amount. The appellant argued that filing an application before the Settlement Commission does not imply guilt, citing a relevant case law. The Tribunal acknowledged the settlement and the compliance with its terms.Issue 4: Initiation of investigation by Directorate of Enforcement after settlementThe Directorate of Enforcement initiated an investigation against the appellants for FEMA violations three years after the case was settled by the Settlement Commission. The appellant contested the allegations, stating that the proceedings were commenced without independent investigation under FEMA and solely based on the DRI case, which had already been settled. The Tribunal found the initiation of proceedings post-settlement to be incorrect and against the statutory mandate, leading to the imposition of penalty being set aside.Issue 5: Allegations of unauthorized financial transactions under FEMAThe allegations against the appellants included making unauthorized financial transactions related to the import of furniture from China. The appellant argued that such bold allegations cannot be made without sufficient evidence and proof of unauthorized transactions. The Tribunal emphasized the need for corroborating material evidence to support allegations of unauthorized financial transactions, citing relevant case laws. The lack of independent inquiry by the Directorate of Enforcement was noted, and the reliance solely on DRI's case was deemed incorrect.In conclusion, the Tribunal allowed both appeals, setting aside the penalty imposed under FEMA due to discrepancies in the proceedings, lack of clarity in charges, and the initiation of investigations post-settlement by the Directorate of Enforcement.