2014 (2) TMI 1434 - AT - FEMA

Foreign exchange penalties reversed due to unestablished goods importation requiring fresh evidence examination under FEMA

Puneet Enterprises Versus Assistant Director of Enforcement Directorate, Ahmedabad

The Appellate Tribunal for Foreign Exchange reversed penalties imposed for FEMA contravention involving foreign exchange remittance without submitting ... Contravention of FEMA - Remission of foreign exchange w/o submitting the exchange control copy of bill of entry to their banker to show that the goods against the remittance were actually imported - Penalty imposed - HELD THAT:- The goods purchased by the appellants from the foreign exchange pertaining to remittance in question has been actually imported by the appellants or not has yet to be established. This fact may be provide by production of the exchange control copy of the bill of entry or by other means. As to whether the records of Dena bank has been rectified or not as per responsibility undertaken by the second appellant and as to whether secondary evidence i.e. true copy or photocopy of the exchange control copy of bill of entry is admissible or not is yet to be examined. Penalties are imposed in the impugned order without determining effectively as to whether such goods were actually imported or not. Hence the impugned order is reversed in appeal by this Tribunal and the case is remanded back for fresh adjudication by the Adjudicating Officer under its original number. Adjudicating Officer shall determine the alleged contravention considering the evidences already recorded and by providing the opportunity to the parties to produce further evidences, if any, apart from what have been recorded in the impugned order regarding the fact as to whether the goods in question have been actually imported by the appellants or not. While determining the contravention, in case the appellants are relying on secondary evidence the reasons shall also be recorded by the. Ld. Adjudicating Officer as to whether the secondary evidence is admissible or not. The instant appeal is disposed of accordingly. This Tribunal directs the Appellants to appear before the Ld. Adjudication Officer on 20th March, 2014. Issues:- Contravention of provisions of Foreign Exchange Regulation Act, 1973- Imposition of penalties on appellants- Dispute regarding submission of original bill of entryAnalysis:The judgment pertains to an appeal against an adjudicating order imposing penalties on three appellants for contravening provisions of the Foreign Exchange Regulation Act, 1973 (FERA). The charges were related to the failure to submit the exchange control copy of the bill of entry for a remittance of foreign exchange. The appellants argued that they had submitted the original bill of entry, but the bank confirmed receiving only a photocopy. The appellants relied on various judgments to support their case, emphasizing that the penalties imposed were unwarranted for a technical breach.The appellate tribunal noted discrepancies in the evidence presented and the lack of clarity regarding whether the goods were actually imported. The second appellant insisted on submitting the original bill of entry, but it was contested whether a true copy could suffice as secondary evidence. The tribunal highlighted the need for a thorough examination of all evidence, including records of the bank, to establish the import of goods. The judgment emphasized the importance of justice based on actual facts and directed a fresh adjudication by the Adjudicating Officer to determine the alleged contravention effectively.In conclusion, the appellate tribunal reversed the impugned order, remanding the case for further adjudication to ascertain whether the goods in question were indeed imported. The appellants were directed to appear before the Adjudicating Officer for further proceedings, with the tribunal stressing the need for a comprehensive examination of evidence to ensure a just decision.