TaxTMI 
TaxTMI 
2011 (1) TMI 1237
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....ment has imposed a penalty of a sum of Rs. 25,000/- on each of the appellant for violation of provisions of Section 9(1 )(a) of FERA. 3. The facts leading to these appeals are that in the year 1991 the Government has promulgated an Act namely Remittances of Foreign Exchange and Investment in Foreign Exchange Bond (Amenities and Exemptions) Act, 1991 to provide certain amenities to persons receiving remittances of foreign exchange and to persons owning foreign exchange bond for certain exemptions from Direct Tax in relation to such remittances and bond due to the fact that at that time there was shortage in flow of foreign exchange in the country. 4. As per the said Act the NRI's were permitted to open NRE Account in India and pe....
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....h Arora. Rakesh Arora has not preferred any appeal. An order against him has attained finality. 7. The question of involving in the present case is whether violation of Section 9(1)(a) is proved or not. The counsel for the appellants contended that the appellants were not offered any opportunity to cross examine the witnesses and denial of opportunity to cross examination the witness and is violative of principles of natural justice. In support of his argument the counsel relied on a judgment of the High Court of Delhi in ITA No. 1264/08 dated 16-2-2000 in case of Commissioner of Income Tax v. Ashok Gupta in which the Apex Court has laid down that refusal to give an opportunity of cross examination and violates the principles of natur....
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....act waived their right of their cross examination . The appellant in the reply admitted the receipt of cheques worth Rs. 2,50,000/- to each. Admittedly the appellants had not produced any general or special permission from RBI. 10. Now the question remains whether these gift cheques were issued by Shri Rakesh Arora without any consideration. A gift cheque can be issued without consideration to friends or relatives but if gift is made in favour of a total stranger person than it will give rise to presumption that the gift were made for some consideration. In such circumstances it was for the appellants to come forward and depose that they have received gifts from Rakesh Arora due to their close relationship or friendship but the appell....
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.... in force". The proceedings under Section 23(1)(a) FERA, 1947 are "adjudicator" in nature and character and are not "criminal proceedings". The officers of the Enforcement Directorate and other administrative authorities are expressly empowered by the Act to "adjudicate" only. Indeed, they have to act "judicially" and follow the rules of natural justice to the extent applicable but, they are not "Judges" of the "Criminal Courts" trying an "accused" for commission of an offence, as understood in the general context. They perform quasi-judicial functions and do not act as "Courts" but only as "administrators" and "adjudicators". In the proceedings before them, they do not try "an accused" for commission of "any crime" (not merely an offence) ....
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....989 UPTC 171 has laid down that the proceedings under FERA are not criminal proceedings and the question of mens rea is not essential ingradient for imposing penalty and further held that the classic views that no mens rea no crime is not applicable in the economic offence.' 13. The Apex Court has thus held that the proceedings under FERA are civil in nature and the court while dealing with the proceedings can impose the penalty on the basis of preponderance of probabilities. 14. In the present case the appellants who had admittedly received a draft of Rs. 2,50,000/- from Rakesh Arora and has refused to give their relationship with them. The learned CA was specifically asked about the relationship of the appellants with Rakesh A....