TaxTMI 
TaxTMI 
2024 (7) TMI 1767
X X X X Extracts X X X X
X X X X Extracts X X X X
....ulations 8, 9 & 13 of the Foreign Exchange Management (Exports of Goods & Services) Regulations 2000 (Regulations). Penalty of Rs. 50,00,000/- was imposed, vide the impugned Order, on the Appellant Shri K.N. Garg for the aforementioned contraventions read with Section 42 of FEMA. In compliance to the Order dated 10.04.2018 of this Tribunal, the Appellant deposited Rs. 13,00,000/- as pre deposit of the penalty amount. Of the total pre deposit Rs. 11,00,000/- was on behalf of the Appellant Company and Rs. 2,00,000/- was on behalf of the Appellant Director. 2. Ld. Counsel for the Appellant mentioned that out of 05 consignments which were exported during the period from March, 2002 to June 2003, for 03 consignments the State Bank of Mysore (Authorized Dealer) conveyed to the Respondent Directorate vide letter dated 25.08.2009 that the unrealized export bills had been written-off on instructions of the RBI conveyed to them vide letter No. FE.BG.EXD. No 895/6.6.007/2009-10 dated 13.08.2009. Ld. Counsel stated that the Ld. Adjudicating Authority accordingly dropped the charge against the Appellant for the said 03 consignments of total value US$ 4603.98 & Singapore $ 4796. 3. Ld. Cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....5.02.2003 an amount of US $ 24,672.89 after deduction of bank charges of US $ 41.78 was realized. The Appellants had informed about the said Remittance to State Bank of Mysore, the Authorized Dealer (AD) on 10.01.2006. Moreover, the AD vide letter dated 06.11.2007 sent to the Appellants a list of outstanding Bills which did not include aforementioned 02 consignments. He prayed for allowing the Appeals for the said 02 consignments as well. 5. Ld. Counsel for the Respondent stated that penalty imposed by the Ld. Adjudicating Authority for the contraventions of Sections 7(2) and 8 of FEMA r/w Regulations 8, 9 and 13 of the Regulations on the two Appellants is justified. He argued that a directive was issued to the Appellant Company on 22.03.2004 yet the Appellants failed to get reconciliation done through the authorized dealers (AD) i.e. State Bank of Mysore for 13 Export Bills and State Bank of India for 17 Export Bills. While for 3 Export Bills RBI allowed the AD to write-off the outstanding amounts, the export proceeds remained unrealized for 27 Export Bills. The Appellants had failed to take all reasonable steps to realize and repatriate the due export proceeds of value US $ 3,....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that the contraventions relating to these 25 Export Bills are established. The reasoning was that the offence for these Bills was continuing into the period after 31.05.2002 as the outstanding proceeds had not been realized and no effort to realize the same was made by the Appellants. In this regard, the bar that arose from Section 49(3) of FEMA was ignored. Section 49(3) of FEMA is reproduced as follows: "Notwithstanding anything contained in any other law for the time being in force, 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." FERA was repealed by Section 49(1) of FEMA with certain saving provisions, with effect from 01.06.2000. Adjudicating Officer was given liberty under Section 49(3) to take notice of any contravention under Section 51 of the Repealed Act up to two years i.e. 31.05.2002. However, in the present case the Show Cause Notice was issued on 15.09.2008. Therefore, for the aforementioned 25 Export Bills no notice could have been taken for an....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 40. Section 6 of the General Clauses Act, 1897 which protects the rights, obligations and actions and liabilities applies in spite of repeal of FERA subject to two years limitation period specified in Sub-section (3) of Section 49 for initiation of proceedings. Therefore, in view of Section 6 of the General Clauses Act read with sub-section (3) of Section 49 of FEMA, proceedings for violation of FERA can be instituted within the sunset period of two years with effect from 1.6.2000 till 31.5.2002. But for sub-section (3) there will be no limitation period of two years in view of Section 6 of the General Clauses Act, 1897 read with sub-section (4) of Section 49 of FEMA." Therefore, these judgments make it clear that any contravention or offence which occurred under FERA could have been only taken notice of by an Adjudicating Authority before the expiry of the sunset clause i.e. 31.05.2002. In view of the aforementioned discussions, the impugned Order and the penalty imposed therein for the contraventions for the said 25 Export Bills are liable to be set aside. 10. The Appellants have contended that with respect to the remaining two GRs No. AW538913 dated 27.06.2003 and AW5....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of a message from HSBC Bank on a separate page stating that payment was made on behalf of M/s Gensis Marble and Granite LLC INV STIG/545/2002 and INV STIG/1139/2003. From the aforementioned documents as submitted by the Appellants, it is important to scrutinize the correctness of the aforementioned observations of the Ld. Adjudicating Authority in paragraph 6.5.8 of the impugned Order. On verification from the ICICI Bank website, it is found that 'Commonly used Purpose Code' states that 'PO103' stand for Advance Against Export of Goods. It is also seen that the copy of FIRC clearly shows the purpose of remittance as stated by beneficiary is advance received against export. 12. We find that in spite of the aforementioned observations by the Ld. Adjudicating Authority that remittance for the exports made in 2003 could not have been received by the Appellant Company as advance received against export in 2006, there is not even a mention/explanation about the said observations by the Appellants in the Appeals which were filed, in the written submissions filed on 13.03.2023 and in the written submissions filed on 15.05.2024. The Appellants have chosen to insist upon contending that ....