2009 (6) TMI 1032 - AT - FEMA

Tribunal Upholds Penalties for Directors' Failure to Secure Foreign Currency Payments Under FER Act Violations.

Hasmukh Rawal Versus Director, Enforcement Directorate

The Tribunal dismissed the appeals, affirming the adjudication order that imposed penalties on the appellants for violating Section 16(1)(a) and Section ... - Issues:Violation of provisions of Section 16(1)(a) read with 68 of FER Act, 1973 by appellants for failure to receive balance foreign currency, Contravention of contractual obligations by appellants, Liability of appellants for non-performance under Section 16, Directors' responsibility under Section 68 of FER Act, 1973, Imposition of penalties on the appellants.Analysis:The judgment pertains to appeals filed against an Adjudication Order imposing penalties for contravention of FER Act, 1973. The appellants failed to receive the balance foreign currency as per an agreement with a non-resident, leading to alleged violations. The Tribunal allowed dispensation of pre-deposit penalty and proceeded with final disposal on merits.The agreement between the appellants and the non-resident involved the sale of shares in a hotel project. The appellants contended that due to the non-resident's failure to obtain RBI permission, further payment could not be received, thus denying any contravention of FER Act, 1973. However, the Show Cause Notice highlighted the failure to secure the agreed payment, leading to adjudication proceedings.The Tribunal found that the appellants did not fulfill the contractual obligations outlined in the agreement, such as obtaining necessary approvals and sanctions. The failure to demand performance or seek damages for breach of contract from the non-resident was noted. The appellants' inaction in ensuring compliance with the agreement's clauses led to non-receipt of the payment, violating Section 16 of FER Act, 1973.Additionally, the appellants, being Directors of the company, were held responsible under Section 68 of FER Act, 1973 for the company's actions. The judgment emphasized that the Board of Directors is liable for company actions, and the penalty imposed was deemed appropriate considering the circumstances. The Tribunal dismissed the appeals, affirming the impugned order and directing the appellants to deposit the penalties within a specified timeframe.In conclusion, the judgment underscores the importance of fulfilling contractual obligations, directors' responsibilities, and adherence to regulatory provisions. The appellants' failure to ensure compliance and demand performance resulted in penalties for violations of FER Act, 1973, ultimately leading to the dismissal of the appeals.