This court dismissed a writ petition challenging a penalty imposed under the repealed FERA 1973. The court observed that FERA contraventions could not be dealt with under FEMA 1999 and affirmed the penalty unless the petitioner proves he is not an officer in charge under the Companies Act.
The Writ Petition is dismissed. No costs.
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THE HON'BLE MR JUSTICE V.V.S.RAO
WRIT PETITION No.16587 of 2004
Dated:02.03.2006
Between: Sri Sanjay Gupta, S/o. Ramkishan Gupta, Plot NO. 116/A, M.L.A. Colony, Road No. 12, Banjara Hills, Hyderabad. AND
..... PETITIONER
Deputy Director of Enforcement, Goverenment of India, Bangalore Zonal Office, State Bank Road (Behind India Garage), Bangalore-560 001, and others.
.....RESPONDENTS
THE HON'BLE MR JUSTICE V.V.S.RAO
WRIT PETITION No.16587 of 2004
ORDER:
The petitioner assails the order dated 06.10.2003 passed by the first respondent under the provisions of the Foreign Exchange Regulation Act, 1973 (‘FERA’ for short) imposing a penalty of Rs.3,00,000/- on M/s.Preyanshu Exports Limited, and its Managing Director (the petitioner herein) and further directing the petitioner to deposit the amount in the Office of Enforcement Directorate, Bangalore, by way of Demand Draft. The order is assailed, inter alia, on the ground that the contraventions under the repealed Act (FERA) cannot be dealt with under the Foreign Exchange Management Act, 1999 (for short ‘FEMA’), especially, after expiry of a period of two years from the date of commencement of the repealed Act.
The learned Counsel also submits that the Company in liquidation and for its contravention, the Managing Director cannot be subjected to penalty. This submission is devoid of any merit. This Court, however, hastens to add that if the petitioner is able to show that he is not an Officer Incharge of the affairs of the Company under Section 5 of Companies Act, 1956, it is always open to him to take such plea before the Appellate Tribunal for Foreign Exchange. Liberty is given to the
petitioner to do so.
The Writ Petition, with the above observations, is dismissed. No costs.
(V.V.S.RAO, J)
02.03.2006
vs
2 issues framed by the court
Whether contraventions under the repealed Foreign Exchange Regulation Act, 1973 can be dealt with under the Foreign Exchange Management Act, 1999.
Whether a Managing Director can be subjected to penalty if the company is in liquidation.
3 provisions across 3 enactments
Sanjay Gupta
Deputy Director of Enforcement
V.V.S. Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
