TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 16
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....c Prosecutor (ED) For the Respondents (in W.P.Nos.1316 &1317/2010) : Mr.Rajnish Pathiyil Special Public Prosecutor (ED) COMMON ORDER The subject matter of challenge in all these three Writ Petitions pertains to the adjudication order passed by the Special Director of Enforcement in proceedings No.ADJ/28/31/B/SDE/KNR/2007 FERA dated 12.03.2009 imposing penalties payable by the petitioners in these Writ Petitions. 2. W.P.No.9218 of 2009, has been filed by the Indian Overseas Bank (IOB) and W.P.Nos.1316 and 1317 of 2010 have been filed by the employees of the IOB. 3. The brief facts of the case are as under: 3.1. During January 1993, the Reserve Bank of India (ROB) provided an information to the Enforcement Directorate to the effect that....
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....onvertible account of the Russian Bank. 3.3. Show Cause Notices were issued by the Enforcement Directorate to IOB, Canara Bank, Bank of Ireland and Indo International Limited UK. The following charges were framed against IOB and its employees. i) for crediting the aforesaid sum of Rs.7,00,00,000/- to the rupee account of the Bank of Ireland, UK, a non-resident, thereby for having engaged in a transaction involving foreign exchange which was not in conformity with the terms of their authorisation granted under sec, 6(4) and 6(5) read with sec. 49 of the FERA 1973; ii) for otherwise transferring foreign exchange to the Bank of Ireland, UK a person not being an authorised dealer in contravention of the provisions of sec. 8(1) of FERA 1973....
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....ove Writ Petitions. 4. Heard Mr.Benjamin George, learned counsel for the petitioner in all the writ petitions, Mr.N.Ramesh learned Special Public Prosecutor (ED) for the respondent in W.P.No.9218 of 2019 and Mr.Rajinish Pathiyil, learned Special Public Prosecutor (ED) appearing on behalf of the respondents in W.P.Nos.1316 and 1317 of 2010. 5. Mr.Benjamin George, learned counsel appearing on behalf of the petitioners submitted that the adjudication order passed by the 1st respondent is without jurisdiction. He further submitted that it was the IOB which was the whistle blower, who exposed the fraud and unfortunately, the bank and its employees have been punished by imposing penalty. The learned counsel further submitted that the Writ Petit....
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....5) of FEMA further makes it clear that any action taken under the repealed Act, insofar as it is not inconsistent with the provisions of FEMA, be deemed to have been done under the corresponding provisions of FEMA. The effect of the above provisions is that the order passed by the Special Director of Enforcement on 12.03.2009, in accordance with FERA, must be treated to be an order under FEMA and consequently, the appellate remedy available under FEMA will automatically apply and that is the reason why, even in the impugned proceedings dated 12.03.2009, the petitioners were informed that an appeal against the order dated 12.03.2009, will lie before the Appellate Tribunal in line with Section 19 r/w Section 49 (5)(a) of the FEMA. 9. Section....
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.... Ltd. v. Mahesh Dutta reported in (2009) 8 SCC 339. 12. In the instant case, on going through the materials placed before us and after carefully considering the order passed by the Special Director of Enforcement, we find that we have to necessarily deal with a lot of documents and get into disputed questions of fact. To avoid such a scenario, the enactment itself provides for further remedies under Section 19 of FEMA before the Appellate Tribunal and thereafter, under Section 35 of the Act, by way of filing a further Appeal before the High Court against the order passed by the Appellate Tribunal. These remedies have been provided to enable an aggrieved person to contest the order passed by the Adjudicating Authority, both on facts and on ....
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..... 15. In the result, these Writ Petitions are disposed of with the following directions: a) The petitioners are permitted to file appeal against the order passed by the Special Director of Enforcement in proceedings No.ADJ/28/31/B/SDE/KNR/2007 FERA dt.12.03.2009, within a period of 45 days from the date of the receipt of copy of this order. b) When these Writ Petitions were entertained, interim orders were passed and thereby, the operation of the order of the Special Director of Enforcement dated 12.03.2009 was stayed. Consequently, the penalty amount was not recovered from the petitioners during the pendency of the Writ Petitions. We are inclined to extend this interim protection till the appeal is filed before the Appellate Tribunal.....