TaxTMI 
TaxTMI 
2013 (11) TMI 1822
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....ice, New Delhi has imposed a penalty to the applicant/appellant, amounting to Rs, 2,00,000/-(Rupees Two lakhs only) for the contraventions of section 10(5) & 10(6) of FEMA, 1999 read with Regulation 6(1) of the Foreign Exchange Management (Realisation, Repatriation & Surrender of Foreign Exchange) Regulations,2000 arising out of failure to submit documentary evidence of import into India in respect of remittance of Japanese yen 1014850 dt. 22.08.2001 made to overseas suppliers. The applicant/appellant is the proprietor of M/S Shree Kamla trading Co. & the proprietor firm deals in the business of trading/selling different types of ball bearings & other bearings both of Indian as well as imported ones since the year 1992 as stated in the pleadings of the applicant/appellant. 2. Memorandum cum Show Cause Notice (SCN) No.T-4/14/FEMA/DZ/2004-DD(SS), dated 03.12.2004 was issued to the applicant/appellant. It is also mentioned in the Adjudication Order, dated 28.06.2007 that the Show Cause Notice (SCN) was received by the applicant/appellant on 17.12.2004 as per the acknowledgement received in the office & when no reply of show cause notice was received, despite service of the appellant,....
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....ar, ALA along with Shri G.N. Ghosh, ALA and Ms. Smriti Pradhan, Legal Consultant appeared on behalf of Enforcement Directorate while Shri Sanjay Kothari, Appellant appeared in person and requested for further adjournment of the case as his counsel could not make it convenient to appear before this Tribunal for hearing. Request allowed and in the interest of justice, the matter is adjourned to 23.10.2013 for the purpose already fixed. Sd/ (H.K. Mudgil) Acting Chairperson The interim order, dated 23.10.2013 runs as under.-- Single Bench Dated : 23.10.2013 Appeal No.(s) : 22/2012 Appelant(s) : Shri Sanjay Kothari Shri G.N. Ghosh, ALA along with Shri B. Naveen Kumar, ALA & Ms. Smriti Pradhan, Legal Consultant appeared on behalf of Enforcement Directorate, while Shri Prasanta Varma, Advocate appeared for the appellant. Shri G.N. Ghosh ALA states that the application for condonation of delay in filing the appeal before the Tribunal, is still pending and it has not been decided so far. It should be decided first before the arguments of Ld. Counsel for the appellant regarding pre deposit. Request is allowed and the arguments on the point of condonation of delay is heard on b....
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....plication of the applicant/appellant for condonation of delay is not maintainable. It is also submitted that in the Adjudication Order, dated 28.06.2007, it is mentioned that the Show Cause Notice (SCN) was received by the applicant/appellant on 17.12.2004 as per the acknowledgement received in the office & when no reply of show cause was received, despite service of the appellant, then it was decided by the Adjudicating Authority to hold the adjudicating proceedings. However, the applicant/appellant appeared before the Adjudicating Authority on 20.09.2006 & this fact has been admitted by the applicant/appellant in his affidavit dated 05.08.2013, placed on record on 07.08.2013 before the Tribunal. It is also mentioned in the Adjudication Order that the applicant/appellant did not turn up thereafter despite the fact that several opportunities were given to the applicant/appellant for personal hearing & in this regard there was no explanation. When no reply was given despite service & the personal appearance of the appellant/appellant, then the Adjudicating Authority passed the Adjudication Order No.DD/PK/5/DZ/2007,dated 28.06 2007 by imposing a penalty of Rs, 2,00,000/- (Rupees Two ....
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....ealed Act shall continue to be governed by the provisions of the repealed Act as if that Act has not been repealed & this was subject to the provisions of Sub-section (3), Sub-section (3) states that no court shall take cognizance of an offence under the repealed Act and no Adjudicating Officer shall take notice of any contravention under Section 51 of the repealed Act after the expiry of a period of two years from the date of the commencement of this Act. This Sub-section clearly speaks of the taking of the cognizance of the offence under the repealed Act which can at best be within the sun set period of two years from the date of the commencement of the FEMA i.e. cognizance can be taken of an offence under the FERA only up to 31 5.2002 and not later. In the instant case Memorandum cum Show cause notice (SCN) No. T-4/14/FEMA/DZ/2004-DD (SS) was issued on 03.12.2004 & on this date it was the FEMA which was in operation, hence the provisions of FEMA, 1999 are applicable in the present case. According to sub-section (2) of section 19, FEMA 1999;- Every appeal under sub-section (1) shall be filed within a period of forty five days from the date on which a copy of the order made by th....
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.... by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest". In the judgement of Living Media India Ltd. (supra), the Hon'ble Supreme Court in para nos. 28-30, observed as under :-- "28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to....