1976 (4) TMI 235 - AT - FEMA

Tribunal Overturns Penalty: Appeal Accepted Despite Delay, Actions Deemed Preparation, Not Attempt Under Regulation Act.

V. Valliappan Versus Director of Enforcement

The Appellate Tribunal set aside the penalty imposed on the appellant for contravening the Foreign Exchange Regulation Act. Despite the appeal being filed ... - Issues:1. Question of limitation in filing the appeal.2. Whether the appellant attempted to contravene the provisions of the Foreign Exchange Regulation Act.3. Determining whether the appellant's actions constituted an attempt or preparation.1. Question of Limitation:The appeal before the Appellate Tribunal arose from an order imposing a penalty on the appellant for contravening the Foreign Exchange Regulation Act. The issue of limitation was raised as the memorandum of appeal was received after the prescribed period. The appellant argued that the limitation should be calculated from the date of service on his advocate, while the department contended it should be from the date of service on the appellant. The Tribunal held that even if service on the advocate was considered as service on the appellant, the appeal could still be entertained due to the Tribunal's powers under the Act, allowing examination of the legality of the order beyond the 90-day limit.2. Attempted Contravention of the Act:The appellant was found guilty of attempting to contravene the Act by receiving money from a person outside India without using authorized channels. The appellant's statement, supported by letters seized from his premises, revealed his intention to collect money from an individual based on coded instructions. The Tribunal rejected the appellant's retraction of the statement, as it was corroborated by evidence. However, it was crucial to determine whether the appellant's actions constituted an attempt under the Act.3. Attempt vs. Preparation:The Tribunal analyzed whether the appellant's actions amounted to an attempt or mere preparation under the law. Referring to legal precedents, the Tribunal highlighted the thin line between preparation and attempt. Applying the test laid down by the Supreme Court, the Tribunal concluded that the appellant's actions, limited to telephoning the intended recipient and not proceeding further, did not reach the threshold of an attempt. The Tribunal found that the appellant's activities had not progressed beyond preparation, leading to the setting aside of the impugned order and the refund of the penalty amount deposited.This detailed analysis of the judgment addresses the issues of limitation, attempted contravention of the Act, and the distinction between attempt and preparation, providing a comprehensive overview of the Tribunal's decision and legal reasoning.