IV - Contravention and Penalties 

 

13. Penalties 

 

(1) If any person contravenes any provision of this Act, or contravenes any rule, regulation, notification, direction or order issued in exercise of the powers under this Act, or contravenes any condition subject to which an authorisation is issued by the Reserve Bank, he shall, upon adjudication, be liable to a penalty up to thrice the sum involved in such contravention where such amount is quantifiable, or up to two lakh rupees where the amount is not quantifiable, and where such contravention is a continuing one, further penalty which may extend to five thousand rupees for every day after the first day during which the contravention continues.

 

(2) Any Adjudicating Authority adjudging any contravention under sub-section (1), may, if he thinks fit in addition to any penalty which he may impose for such contravention direct that any currency, security or any other money or property in respect of which the contravention has taken place shall be confiscated to the Central Government and further direct that the foreign exchange holdings, if any of the persons committing the contraventions or any part thereof, shall be brought back into India or shall be retained outside India in accordance with the directions made in this behalf.

 

Explanation - For the purposes of this sub-section, "property" in respect of which contravention has taken place, shall include -

 

(a) deposits in a bank, where the said property is converted into such deposits;

 

(b) Indian currency, where the said property is converted into that currency; and

 

(c) any other property which has resulted out of the conversion of that property.

 

14. Enforcement of the orders of Adjudicating Authority 

 

(1) Subject to the provisions of sub-section (2) of section 19, if any person fails to make full payment of the penalty imposed on him under section 13 within a period of ninety days from the date on which the notice for payment of such penalty is served on him, he shall be liable to civil imprisonment under this section.

 

(2) No order for the arrest and detention in civil prison of a defaulter shall be made unless the Adjudicating  Authority has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause why he should not be committed to the civil prison, and unless the Adjudicating Authority, for reasons in writing, is satisfied -

 

(a) that the defaulter, with the object effect of obstructing the recovery of penalty, has after the issue of notice by the Adjudicating Authority,  dishonestly transferred, concealed, or removed any part of his property, or

 

(b) that the defaulter has, or has had since the issuing of notice by the Adjudicating Authority, the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.

 

(3) Notwithstanding anything contained in sub-section (1), a warrant for the arrest of  the, defaulter may be issued by the Adjudicating Authority if the Adjudicating Authority is satisfied, by affidavit or otherwise, that with the object or effect of delaying the execution of the certificate the defaulter is likely to abscond or leave the local limits of the jurisdiction of the Adjudicating Authority.

 

(4) Where appearance is not made pursuant to a notice issued and served under sub-section (1), the Adjudicating Authority may issue a warrant for the arrest of the defaulter.

 

(5) A warrant of arrest issued by the Adjudicating Authority under sub-section (3) or sub-section (4) may also be executed by any other Adjudicating Authority within whose jurisdiction the defaulter may for the time being be found.

 

(6) Every person arrested in pursuance of a warrant of arrest under this section shall be brought before the Adjudicating Authority issuing the warrant as soon as practicable and in any event within twenty-four hours of his arrest (exclusive of the time required for the journey) :

 

Provided that, if the defaulter pays the amount entered in the warrant of arrest as due and the costs of the arrest to the officer arresting him, such officer shall at once release him.

 

Explanation - For the purposes of this sub-section, where the defaulter is a Hindu undivided family, the karta thereof shall be deemed to be the defaulter,

 

(7) When a defaulter appears before the Adjudicating Authority pursuant to a notice to show cause or is brought before the Adjudicating Authority under this section, the Adjudicating Authority shall give the defaulter an opportunity showing cause why he should not be committed to the civil prison.

 

(8)  Pending the conclusion of the inquiry, the Adjudicating Authority may, in his discretion, order  the defaulter to be detained in the Custody of such officer as the Adjudicating Authority may think fit or release him on his furnishing the  security to the satisfaction of the Adjudicating Authority for his appearance as and when required.

 

(9) Upon the conclusion of the inquiry, the Adjudicating Authority may make an  order for the detention of the defaulter in the civil prison and shall in that event cause him to be arrested if he is not already under arrest :

 

Provided that in order to give a defaulter an opportunity of satisfying the  arrears, the Adjudicating Authority may, before making the order of detention, leave the defaulter in the custody of the officer arresting him or of any other  officer for a specified period not exceeding fifteen days, or release him on his furnishing security to the satisfaction of the Adjudicating Authority for his appearance at the expiration of the specified period if the arrears are not  satisfied.

 

(10) When the Adjudicating Authority does not make an order of determining  under sub-section (9), he shall, if the defaulter is under arrest, direct his release.

 

(11) Every person detained in the civil prison in execution of the certificate may  be so detained -

 

(a) where the certificate is for a demand of an amount exceeding rupees one  crore, up to three years, and

 

(b) in any other case, up to six months:

 

Provided that he shall be released from such detention on the amount mentioned in the, warrant for his detention being paid to the officer-in-charge of  the  civil prison.

 

(12) A defaulter released from detention under this section shall not, merely by  reason of his release, be discharged from his liability for the arrears, but he shall not be liable to be arrested under the certificate in execution of which he  was detained in the civil prison.

 

(13) A detention order may be executed at any place in India in the manner  provided for the execution of warrant of arrest under the Code of Criminal  Procedure, 1973 (2 of 1974)

 

15. Power to compound contravention 

 

(1) Any contravention under section 13 may, on an application made by the person committing such contravention, be compounded within one hundred and eighty days from the date of receipt of application by the Director of  Enforcement or such other officers of the Directorate of Enforcement and  officers of the Reserve Bank as may be authorised in this behalf by the Central Government in such manner as may be prescribed.

 

(2) Where a contravention has been compounded under sub-section (1), no  proceeding or further proceeding, as the case may be, shall be initiated or continued, as the case may be, against the person committing such contravention  under that section, in respect of the contravention so compounded.

 

V - Adjudication and Appeal 

 

16. Appointment of Adjudicating Authority 

 

(1) For the purpose of adjudication under section 13, the Central Government may, by an order published in the Official Gazette, appoint as many officers of the Central Government as it may think fit, as the Adjudicating Authorities for holding an inquiry in the manner prescribed after giving the person alleged to have committed contravention under section 13, against whom a complaint has been made under sub-section (2) (hereinafter in this section referred to as the said person) a reasonable opportunity of being heard for the purpose of imposing any penalty :

 

Provided that where the Adjudicating Authority is of opinion that the said  person is likely to abscond or is likely to evade in any manner, the payment of penalty, if levied, it may direct the said person to furnish a bond or guarantee  for such amount and subject to such conditions as it may deem fit.

 

(2) The Central Government shall, while appointing the Adjudicating  Authorities under sub-section (1), also specify in the order published in the Official Gazette their respective jurisdictions.

 

(3) No Adjudicating Authority shall hold an enquiry under sub-section (1) except upon a complaint in writing made by any officer authorised by a general or special order by the Central Government.

 

(4) The said person may appear either in person or take the assistance of a legal practitioner or a chartered accountant of his choice for presenting his case before the Adjudicating Authority.

 

(5) Every Adjudicating Authority shall have the same powers of a civil court which are conferred on the Appellate Tribunal under sub-section (2) of section 28 and -

 

(a) all proceedings before it shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code; ( 45 of 1860 );

 

(b) shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973 ( 2 of 1974).

 

(6) Every Adjudicating Authority shall deal with the complaint under sub-section (2) as expeditiously as possible and endeavor shall be made to dispose of the complaint finally within one year from the date of receipt of the complaint:

 

Provided that where the complaint cannot be disposed of within the said period, the Adjudicating Authority shall record periodically the reasons in writing for not  disposing of the complaint within the said period.

 

17. Appeal to Special Director (Appeals) 

 

(1) The Central Government shall, by notification, appoint one or more Special Directors (Appeals) to hear appeals against the orders of the  Adjudicating Authorities under this section and shall also specify in the said notification the matter and places in relation to which the Special Director (Appeals) may exercise jurisdiction.

 

(2) Any person aggrieved by an order made by the Adjudicating Authority, being an Assistant Director of Enforcement or a Deputy Director of Enforcement, may prefer an appeal to the Special Director (Appeals).

 

(3) Every appeal under sub-section (1) shall be filed within forty-five days from the date on which the copy of the order made by the Adjudicating Authority is received by the aggrieved person and it shall be in such form, verified in such manner and be, accompanied by such fee as may be prescribed :

 

Provided that the Special Director (Appeals) may entertain an appeal after the expiry of the said period of forty-five days, if he is satisfied that there was sufficient cause for not filing it within that period.

 

(4) On receipt of an appeal under sub-section (1), the Special Director (Appeals) may after giving the parties to the appeal an opportunity of being heard, pass such order thereon as he thinks fit confirming, modifying or setting aside the order appealed against.

 

(5) The Special Director (Appeals) shall send a copy of every order made by him to the parties to the appeal and to the concerned Adjudicating Authority.

 

(6) The Special Director (Appeals) shall have the same powers of a civil court which are conferred on the Appellate Tribunal under sub-section (2) of section 28 and

 

(a) all proceedings before him shall be deemed to be judicial proceedings  within the meaning of sections 193 and 228 of the Indian Penal Code;

 

(b) shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973.

 

18. Establishment of Appellate Tribunal and the Special Director (Appeals) 

 

The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Appellate Tribunal for Foreign Exchange to hear appeals against the orders of the Adjudicating Authorities under this Act.

 

19. Appeal to Appellate Tribunal 

 

(1) Save as provided in sub-section (2), the Central Government or any person aggrieved by an order made by an Adjudicating Authority, other than those referred to in sub-section (1) of section 17, or the Special Director (Appeals), may prefer all appeal to the Appellate Tribunal :

 

Provided that any person appealing against the order of the Adjudicating Authority or the Special Director (Appeals) levying any penalty, shall while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the Central Government :

 

Provided further that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty.

 

(2) 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 the Adjudicating Authority or the Special Director (Appeals) is received by the aggrieved person or by the Central Government and it shall be in such form, verified in such manner and be accompanied by such fee as may be prescribed.

 

Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.

 

(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.

 

(4) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Adjudicating Authority or the Special Director (Appeals), as the case may be.

 

(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be  dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within one hundred and eighty days from the date of receipt of the appeal :

 

Provided that where any appeal could not be disposed off within the said period of one hundred and eighty days, the Appellate Tribunal shall record its reasons in writing for not disposing off the appeal within the said period.

 

(6) The Appellate Tribunal may, for the purpose of examining the legality, propriety or correctness of any order made by the Adjudicating Authority under section 16 in relation to any proceeding, on its own motion or otherwise, call for the records of such proceedings and make such order in the case as it thinks fit.

 

20. Composition of Appellate Tribunal 

 

(1) The Appellate Tribunal shall consist of a Chairperson and such number of Members as the Central Government may deem fit.

 

(2) Subject to the provisions of this Act -

 

(a) the jurisdiction of the Appellate, Tribunal may be exercised by Benches thereof;

 

(b) a Bench may be constituted by the Chairperson with one or more Members as the Chairperson may deem fit;

 

(c) the Benches of the Appellate Tribunal shall ordinarily sit at New Delhi  and at such other places as the Central Government may, in consultation  with the Chairperson, notify;

 

(d) the Central Government shall notify the areas in relation to which each  Bench of the Appellate Tribunal may exercise jurisdiction.

 

(3) Notwithstanding anything contained in (2), the Chairperson may transfer a Member from one Bench to another Bench.

 

(4) If at any stage of the hearing of any case or matter it appears to the Chairperson or a Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairperson or, as the case may be, referred to him for transfer, to such Bench as the Chairperson may  deem fit.

 

21. Qualifications for appointment of Chairperson, Member and Special Director (Appeals) 

 

(1) A person shall not be qualified for appointment is the Chairperson or a Member unless he -

 

(a) in the case of Chairperson, is or has been, or is qualified to be, a Judge of High Court; and

 

(b) in the case of a Member, is or has been, or has been, or is qualified to be, a District Judge,

 

(2) A person shall not be qualified for appointment as a Special Director (Appeals) unless he -

 

(a) has been a member of the Indian Service and has held a post in Grade I of that Service; or

 

(b) has been a member of the Indian Revenue Service and has held a post  equivalent to a Joint Secretary to the Government of India.

 

22. Term of Office 

 

The Chairperson and every other Member shall hold office as such for a term of five years from the date on which he enters upon his office;

 

Provided that no Chairperson or other Member shall hold office as such after he has attained  -

 

(a) in the case of the Chairperson, the age of sixty-five years;

 

(b) in the case of any other Member, the age of sixty-two years.

 

23. Terms and conditions of service 

 

The salary and allowances payable to and the other terms and conditions of services of the Chairperson, other Members and the Special Director (Appeals) shall be such as may be prescribed.

 

Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson or a Member shall be varied to his disadvantage after appointment.

 

24. Vacancies 

 

If, for reason other than temporary absence, any vacancy occurs in the office of the Chairperson or a Member, the Central Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before the Appellate Tribunal from the stage at which the vacancy is filed.

 

25. Resignation and removal 

 

(1) The Chairperson or a Member may, by notice in writing under his hand addressed to the Central Government, resign his office :

 

Provided that the Chairperson or a Member shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of term of office, whichever is the earliest.

 

(2) The Chairperson or a Member shall not be removed from his office except by an order by the Central Government on the ground of proved misbehaviour or incapacity after an inquiry made by such person as the President may appoint for this purpose in which the Chairperson or a Member concerned has been informed of the charges against him and given a reasonable opportunity of being heard in respect of such charges.

 

26. Member to act as Chairperson in certain circumstances 

 

(1) In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the senior-most Member shall act as the Chairperson until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.

 

(2) When the Chairperson is unable to discharge his functions owing to absence, illness or any other cause, the senior-most Member shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties.

 

27. Staff of Appellate Tribunal and Special Director (Appeals) 

 

(1) The Central Government shall provide the Appellate Tribunal and the Special Director (Appeals) with such officers and employees as it may deem fit.

 

(2) The officers and employees of the Appellate Tribunal and office of the Special Director (Appeals) shall discharge their functions under the general superintendence of the Chairperson and the Special Director (Appeals), as the case may be.

 

(3) The salaries and allowances and other conditions of service of the officers and employees of the Appellate Tribunal and office of the Special Director (Appeals) shall be such as may be prescribed.

 

28. Procedure and powers of Appellate Tribunal and Special Director (Appeals) 

 

(1) The Appellate Tribunal and the Special Director (Appeals) shall not he bound by the procedure laid down by the Code of Civil Procedure, 1908, (5 of 1908) but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, the Appellate Tribunal and the Special Director (Appeals) shall have powers to regulate its own procedure.

 

(2) The Appellate Tribunal and the Special Director (Appeals) shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely :--

 

(a) summoning and enforcing the attendance of any person and examining him on oath;

 

(b) requiring the discovery and production of documents;

 

(c) receiving evidence on affidavits;

 

(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy  of such record or document from any office;

 

(e) issuing commissions for the examination of witnesses or documents;

 

(f) reviewing its decisions;

 

(g) dismissing a representation of default or deciding it ex parte;

 

(h) setting aside any order of dismissal of any representation for default or  any order passed by it ex parte; and

 

(i) any other matter which may be prescribed by the Central Government.

 

(3) An order made by the Appellate Tribunal or the Special Director (Appeals) under this Act shall be executable by the Appellate Tribunal or the Special Director (Appeals) as a decree of civil court and, for this purpose, the Appellate Tribunal and the Special Director (Appeals) shall have all the powers of a civil court.

 

(4) Notwithstanding anything contained in sub-section (3), the Appellate Tribunal or the Special Director (Appeals) may transmit any order made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by that court.

 

(5) All proceedings before the Appellate Tribunal and the Special Director (Appeals) shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860) and the Appellate Tribunal shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973.

 

29. Distribution of business amongst Benches 

 

Where Benches are constituted, the Chairperson may, from time to time, by notification, make provisions as to the distribution of the business of the Appellate Tribunal amongst the Benches and also provide for the matters which may be dealt with by each Bench.

 

30. Power of Chairperson to transfer cases 

 

On the application of any of the parties and after notice to the parties, and after to hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairperson may transfer any case pending before one Bench, for disposal, to any other Bench.

 

31. Decision to be by majority 

 

If the Members of a Bench consisting of two Members differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson who shall either hear the point or points himself or refer the case for hearing points by one or more of the other members of the Appellate Tribunal and such point or points shall be decided according to the opinion of the majority of the Members of the Appellate Tribunal who have heard the case, including those who first heard it.

 

32. Right of appellant to take assistance of legal practitioner or chartered accountant and of Government to appoint presenting officers 

 

(1) A person preferring an appeal to the Appellate Tribunal and the Special Director (Appeals) under this Act may either appear in person or take the assistance of a legal practitioner or a chartered accountant of his choice to present his case before the Appellate Tribunal or the Special Director (Appeals), as the case may be.

 

(2) The Central Government may authorise one or more legal practitioners or chartered accountants or any of its officers to act as presenting officers and every person so authorised may present the case with respect to any appeal  before the Appellate Tribunal or the Special Director (Appeals), as the case may be.

 

33. Members, etc., to be public servants 

 

The Chairperson, Members and other officers and employees of the Appellate Tribunal, the Special Director (Appeals) and the Adjudicating Authority shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code.

 

34. Civil Court not to have jurisdiction 

 

 

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an Adjudicating Authority or the Appellate Tribunal is empowered by or under this act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

 

35. Appeal to High Court 

 

Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order:

 

Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.

 

Explanation - In this section "High Court" means -

 

(a) the High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and

 

(b) where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily resides or  carries on business or personally works for gain.

 

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