TaxTMI 
TaxTMI 
2023 (7) TMI 1478
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....n Region) of the Enforcement Directorate, Mumbai. 2. Complaint dated 30-10-2017 under section 16 (3) FEMA 1999 alleged that the appellants in their statements under section 37 of FEMA have admitted that they were maintaining a joint account in Deutsch Bank in Geneva wherein they deposited their earning from consultancy service in Nigeria. The said funds were transferred to an account in HSBC Bank Geneva which was in the name of Appellant and his wife. These funds amounting to US $ 13,36,000/- (Valued at Rs. 6,14,56,000/-) were transferred from HSBC Bank Geneva to HSBC Bank Dubai. The account in HSBC Dubai was that of cousin of Shri Kumar Satur Nathani. The complaint relied upon the prosecution complaint filed by the Income-tax Department, ....
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....he approval of RBI. The Ld. Adjudicating Authority also held that the generation of the money from consultancy charges could not be proved by the Appellants in the absence of documentary evidence like invoice etc. He further held that the Appellants did not take any reasonable steps to bring back the foreign exchange as their correspondence with the account holder in Dubai did not corroborate such efforts. He therefore, held that there was deliberate intent on the part of the Appellants to bypass the Indian Laws. He accordingly imposed the said penalties on the two Appellants. 4. The Tribunal vide order dated 9-10-2018 allowed the Appellant No. 1 to make pre-deposit of 25 percent of the penalty amount of Rs. 1.5 crores, which was deposited....
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.... the Appellant No. 2, the appellants took steps to bring back Foreign Exchange of US $13,36,000/-. He submitted compliance report on 6-1-2023 of the deposit of the said amount in the account of the Appellant No. 1 in the Central Bank of India Mumbai and enclosed remittance certificate to that effect from the Bank. He therefore, pleaded on 4-7-2023 & 5-7-2023 to set aside the impugned Adjudication Order. 6. Learned counsel for the respondent argued on 4-7-2023 & 5-7-2023 that the appellants had deposited the Foreign Exchange abroad without taking permission of RBI and since they had failed to remit the Foreign Exchange till 2019, the offence stood completed. He reiterated paragraphs 5.6 and 5.7 of the impugned Adjudication Order and therefo....
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....ted 30-10-2017 there is no such mention about the appellants having not earned money from the said consultancy service charges. It is also not disputed by the appellants that the documentary evidence which they produced for their efforts to remit the funds from HSBC Dubai are of 2015 and onwards. However, the culmination of such efforts is reflected in the remittance made to the account of Appellant No. 1 in Central Bank of India Mumbai in seven tranches in the period from September, 2019 to February, 2020 which was reported to this Tribunal in January, 2023.The impugned Adjudication Order was passed on 13-4-2018. Therefore, the finding of the Ld. Adjudicating Authority that the appellants have not taken any reasonable steps to bring back t....
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....case of The Chairman, SEBI v. Shriram Mutual Fund [2006] 68 SCL 216. His Lordships stated in para 20 of the judgment:- "In our considered opinion, penalty is attracted as soon as the contravention of the statutory obligation as contemplated by the Act and the Regulation is established and hence the intention of the parties committing such violation becomes wholly irrelevant. A breach of civil obligation which attracts penalty in the nature of fine under the provisions of the Act and the Regulations would immediately attract the levy of penalty irrespective of the fact whether contravention must be made by the defaulter with quilty intention or not. We also further held that unless the language of the statute indicates the need to establis....
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.... v. M.C.T.M. Corpn. (P.) Ltd. [Manu/SC/0300/1996]/[1997]88 Comp. Case. 449 wherein even for FERA 1947 it was held that the contravention shall be breach of a civil obligation which would attract penalty irrespective of the fact whether the contravention was made with any guilty intention or not. The Judgment supra cited a number of previous judgments wherein it was held that mens rea is not an essential element for imposing penalty for breach of civil obligations. 11. In view of the facts that the appellants have brought back the entire amount of Foreign Exchange worth Rs. 6,14,56,000/- and have paid Rs. 3,05,53,769/- towards Income-tax and Interests I am inclined to restrict and reduce the penalty amount to the pre-deposits of the penalti....