The Adjudicating Officer had taken notice of the contraventions within the time period specified by Section 49 (3) of the Act of 1999.

JUDGMENT :

DEBANGSU BASAK, J.

1. Three appeals have been heard together as they involve similar issues.

2. The appellants in the three appeals have been represented by two sets of learned counsel. For the sake of convenience, facts and contentions of the appellants in the three appeals are adumbrated in order of time of the three appeals.

3. FEA No. 5 of 2008 had been filed prior to the other two appeals and for the sake of convenience is hereinafter referred to as the first appeal. The appellants in FEA 22 of 2009 and FEA 23 of 2009 have been represented by a different learned counsel. These two appeals, for the sake of convenience have been referred to as the next sets of appeals.

4. Learned advocate appearing for the appellants in the first appeal has drawn the attention of the Court to the facts of the present case. He has submitted that the memorandum dated March 31, 2002 was issued to the appellants on May 31, 2002. He has referred to the stand taken by the appellants both before the adjudicating officer as also at the subsequent stage before the appellate authority that, the memorandum was issued on June 1, 2002 and therefore, beyond period prescribed by the sun set clause.

5. Learned advocate appearing in the first appeal has referred to Section 49 of the Foreign Exchange Management Act, 1999 (FEMA) and in particular Section 3 thereof and contended that, beyond May 31, 2002 provisions of Foreign Exchange Regulation Act, 1973 (FERA) cannot be invoked. He has referred to the memorandum dated May 31, 2002 and contended that, the same was received by the appellants in the first appeal on June 3, 2002. The department did not produce any document to establish that the memorandum dated May 31, 2002 has been sent by registered post and was put beyond the control of the department on May 31, 2002. In support of his contentions that the department did not establish the dispatch of the memorandum dated May 31, 2002 learned advocate appearing for the appellants in the first appeal has relied upon 1999 SCC Online Cal 722 (Rajesh Kumar Jain vs. Union of India) and 1996 Volume 1 Calcutta High Court Notes 1 (Union of India and others vs. Shri Kanti Tarafdar & Ors.).

6. Learned advocate appearing for the appellants in the first appeal has contended that, since the department did not act in terms of Section 49 of the Act of 1999 in invoking the provisions of FERA within the time period prescribed, therefore, the act of the department is invalid. In support of such contentions he has relied upon 199 Supplementary 1 SCC 471 (Collector of Central Excise, Madras Vs. M/s M. M. Rubber and Co. Tamil Nadu), All India Reporter 1939 Privy Council 253 (Nazir Ahmad vs. King Emperor), and 2021 Volume 6 Supreme Court Cases 707 (OPTO Circuit India Ltd. Vs. Axis Bank & Ors.).

7. Learned advocate appearing for the appellant has contended that, the adjudicating officer did not have jurisdiction to decide the claim. He has referred to a notification issued by the authorities in 2003. He has contended that exercise of powers under FERA was not available in 2003. He has drawn the attention of the Court to the fact that, the impugned order was passed on December 19, 2004 well beyond the time period prescribed. In support of such contention he has relied upon 2022 Volume 145 taxmann.com 83 (Bombay) vs. First Global Stockbroking (P) Ltd.

8. Learned advocate appearing for the appellants in the first appeal has contended that, a fiscal statute is required to be strictly considered. In support of such contention he has relied upon 2022 Volume 5 Supreme Court Cases 62 (Krishi Upai Mandi Samiti, New Delhi vs. CCE) and 1991 Volume 4 Supreme Court Cases 467 (Commissioner of Income Tax, Gujrat vs. Cellulose Production of India Ltd.).

9. Learned advocate appearing for the appellants in the first appeal has contended that, Reserve Bank of India did not initiate any proceedings with regard to the so called violation of the terms of the license. In fact, Reserve Bank of India had r