2005 (12) TMI 616 - AT - FEMA

Tribunal Quashes Penalty for Late Bill of Entry Filing, Citing No Specific Time Limit in Foreign Exchange Regulation Act.

The Tribunal set aside the Adjudication Order imposing a penalty on the appellant for contravening the Foreign Exchange Regulation Act, 1973. Despite the ... - Issues:Challenge to Adjudication Order imposing penalty for contravention of Foreign Exchange Regulation Act, 1973.Validity of the requirement to make pre-deposit of penalty.Late filing of Bill of Entry as proof of import of goods.Interpretation of provisions of section 8(3) Foreign Exchange Regulation Act, 1973.Analysis:The appellant challenged Adjudication Order imposing a penalty for contravention of the Foreign Exchange Regulation Act, 1973. The appellant was penalized for not using the foreign exchange obtained for importing goods and failing to file proof thereof. The Tribunal initially directed the appellant to make a pre-deposit of 20% of the penalty amount, which was later set aside by the High Court for fresh disposal of the application for waiver of the pre-deposit.The appellant submitted additional papers, including a letter from the authorized banker stating that the Bill of Entry for the remittance in question was filed after some time. The appellant argued that they had imported goods using the foreign exchange and filed the Bill of Entry as proof, even though it was filed beyond the prescribed time. The respondent contended that the late filing of the Bill of Entry indicated negligence on the part of the appellant.The Tribunal analyzed the provisions of section 8(3) of the Foreign Exchange Regulation Act, 1973, and the Exchange Control Manual regarding the filing of proof of import of goods. It was observed that while there was no specific time limit mentioned for filing proof of import, the Act required the foreign exchange to be used for importing goods. The Exchange Control Manual only mentioned a reminder by the authorized banker after 3 months of non-filing. The Tribunal concluded that late filing of proof of import should not attract a penalty, as long as the foreign exchange was utilized for importing goods.Considering that the appellant had indeed imported goods using the foreign exchange and filed proof with the authorized banker, albeit late, the Tribunal found merit in the appeal. The adjudication order imposing the penalty was set aside and quashed, as it did not hold up under legal scrutiny. The appeal was allowed in favor of the appellant.