2018 (4) TMI 421

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....ation of Section 9(1)(e) of Foreign Exchange Regulations Act, 1973 (hereinafter referred to as FERA).   2. Learned counsel for the petitioners, inter alia, contends that the respondent has failed to comply with the mandatory requirement of proviso to Clause (ii) of sub Section (2) of Section 61 of FERA and no opportunity notice, as mandated by law, was served on the petitioner.   3. It is contended that proviso to Section 61(2)(ii) of FERA prohibits taking of cognizance by a Court of an offence punishable under Section 56 and 57 of FERA unless an opportunity has been given to the accused of showing that he had the requisite permission.   4. Learned counsel for the petitioners submits that no such opportunity was gran....

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....by a general or special order: Provided that where any such offence is the contravention of any of the provisions of this Act or of any rule, direction or order made thereunder which prohibits the doing of an act without permission, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission."   7. The requirement of proviso to Clause (ii) of sub Section (2) of Section 61 is that an opportunity of showing that the accused had the requisite permission, is a mandatory requirement.   8. A Coordinate Bench of this Court in Sanjay Malviya vs. R.K. Rawal CEO Enforcement Directorate: (2015) 149 DRJ 231 has held that there is a statutory bar imposed....

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....change Regulations Act, 1973 obtained any general/ special permission / exemption of the RBI in respect of the aforesaid transaction and acknowledgement of debt of Foreign Exchange failing which a complaint under section 56 RERA, 1973 read with Section 49(2) &(4) of FEMA, 1999 will be filed in the Court of Law against them. This notice is issued in pursuance of Section 61(2) of the FERA, 1973 read with section 49(3) & (4) of FEMA, 1999."   13. The Notice issued by the Respondents on 24.05.2002 was titled "OPPORTUNITY NOTICE". It specifically stated that it was being issued in pursuance of Section 61(2) of FERA and gave an opportunity to the Petitioner to show if they had the requisite permission.   14. It is also an admit....