TaxTMI 
TaxTMI 
TaxTMI 
2019 (1) TMI 980
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....N/2018, MP-FE- 133/CHN/2018 (Misc.) & FPA-FE-24/CHN/2018, MP-FE- 134/CHN/2018 (Misc.) & FPA-FE-25/CHN/2018, MP-FE- 132/CHN/2018 (Misc.) &FPA-FE-23/CHN/2018 1. The aforesaid appeals have been filed against impugned order No. SDE/SRO/BGZO/09/2018 dated 23.02.2018 passed by the Special Director, Chennai (hereinafter referred to as the Adjudicating Authority). 2. In the present appeals, it was alleged by the respondent that the Appellants have contravened Section 6(3)(d) of FEMA, 1999 r/w Regulation 3, 5(3), 6(3) and Paragraph 1 of Schedule III of the Foreign Exchange Management (Borrowing of Lending Foreign Exchange) Regulations, 2000 to the extent of Rs. 363,79,49, 687/- (Rupees Three Hundred and Sixty Three Crores, Seventy Nine Lakhs Forty....
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....r charged nor paid by the Appellant in both cases. - No pecuniary gain to the Appellant due to delayed repatriation. 9. It is not denied by the respondent that the dues were ultimately in the present transaction(s) were settled as per the Master Circular on Imports. The delay is opposed by the respondent who states that RBI could not condone it and being an independent Authority, the appellant have to be deal with breach of provisions of FEMA as the same were not paid within the prescribed period of time. It is not denied on behalf of the respondent that the provisions of FEMA prohibit transfer of Foreign exchange to any person other than the authorized person unless provided for under FEMA or with the general or special permission of th....
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....ng a. Expressly requiring the AD Bank to verify the genuineness of the reasons for delay. b. Expressly requiring the AD Bank to verify whether there was any pecuniary gain to the Appellant. c. Specific confirmation by the Appellant that there was no pecuniary gain to it. d. Confirmation by the Appellant that the amounts to be paid were not utilized for any other purpose and that there was no interest paid on the same. 14. It is further submitted on behalf of appellant that there was no pecuniary benefit accruing to the Appellant due to the delay in the form of any interest inasmuch as the amounts were part of the current accounts of the Appellant. Appellant‟s letter dated 02.09.2013 is referred. It is alleged that infact RBI&....
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....onths. Counsel has referred Para 7.11 of the impugned order in support of her submission. 19. The reliance is placed on Para A.12(i) of AP (Dir) Circular 9 of 2000 dated 24.08.2000 by the respondent to hold that amounts due for more than 6 months automatically makes the same a deferred payment arrangement/ECB is incorrect. Stringent law can only be applied in the Master Circular on Imports where there is no such condition mandated. Further, Para B.5(ii) expressly provides for settlement of dues by the AD Banks beyond a period of 6 months. Para A.12(ii) in AP (Dir) Circular 9 of 2000 provides for settlement of dues beyond a period of 6 months by the AD Bank in case of dispute, financial difficulties, etc., just as Para B.5(ii) of the Maste....
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....to the Appellants if they are made to make a deposit of any part of their respective penalty which is without basis in law and in any event highly disproportionate to the bona fide actions of the Appellants. 24. The decision of Monotosh does not have bearing in the facts and circumstances of the present case. Without prejudice to any of the aforesaid, if anything, the decision in Monotosh Saha actually supports the contentions of the Appellant inasmuch as the Hon'ble Supreme Court has held that it is undesirable to require the assessee to pay full or substantive part of the demand if it appears that such demand has no leg to stand upon. The relevant extract from the Respondent‟s own cited case is reproduced below:- "8. It is true t....
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....s. 28. Even the facts and circumstances in Telestar are completely different from the present case. In Telestar Travels, the facts pertained to violations of FERA in the background of a paper company abroad whereas in the present case, the issue is at best interpretative of the provisions of FEMA and the Master Circular on Imports. 29. Further, in the present case, the RBI has specifically allowed the settlement of dues from FEMA angle which was not the case in Telestar. It is evident that the appellant in Telestar never raised the issue of delay before either the Hon'ble Tribunal nor the Hon'ble High Court. Thus, there were no findings on the aforesaid aspect in the lower courts prior to the same being considered by the Hon'ble Supreme ....