This Order disposes of the Appeals Nos. FPA-FE 17/BNG/2016 filed by M/s. BPL Limited and FPA-FE-18/BNG/2016 filed by Shri Ajit G. Nambiar (Managing Director), against the Order No. BGZO/JD/04/2016 dated 31.08.2016 (Impugned Order) passed by the Joint Director, Directorate of Enforcement, Government of India, Bengaluru Zonal Office. The Ld. Adjudicating Authority (AA) imposed the penalty of Rs. 50,00,000/- on M/s. BPL Limited for the contravention of Section 10 (6) of the Foreign Exchange Management Act, 1999 (FEMA) read with Regulation 6 (1) of Foreign Exchange Management (Realization, Repatriation and Surrender of Foreign Exchange) Regulation 2000, (RBI No. FEMA 9/2000-RB dated 03.05.2000 issued by the Reserve Bank of India (RBI)), to the extent of Rs. 4,90,43,501.66. Penalty of Rs. 5,00,000/- was imposed on Shri Ajit G. Nambiar for the aforementioned contraventions in terms of Section 42 of FEMA.

2. Ld. Counsel for the Appellant submitted that the Impugned Order is arbitrary and untenable on facts and in law. The Show Cause Notice (SCN) was issued to the Appellants in September, 2015 with respect to transactions that had occurred 15 years ago in 2000-01. Ld. Counsel stated that on 28.11.2002 the Respondent Directorate issued a notice bearing No. T-3/IMP/589-BZ/02(SR) asking the Appellant Company to confirm whether it had submitted the Exchange Control Copies of the Bills of Entry relating to a set of completely different transactions as per the list attached thereto. It was submitted that till 2015 no further inquiry was made. The Respondent Directorate vide its letter in 2015 asked the Hong Kong and Shanghai Banking Corporation (HSBC) and the Citibank to furnish proof of submission of the Exchange Control Copies of the Bills of Entry. While the HSBC informed that the Appellant Company had not submitted Exchange Control Copies of the Bills of Entry in respect of 10 transactions, the Citibank stated that the Appellant Company did not submit Exchange Control Copies of the Bills of Entry in respect of four transactions. The Appellant Company was not in position to trace the record and hence no reply was sent. Ld. Counsel stated that in the Complaint dated 02.09.2015 under Section 16 of FEMA and in the SCN dated 16.09.2015 the Appellants were charged for 13 transactions of which 10 related to HSBC and 3 related to Citibank.

3. Ld. Counsel for the Appellant argued that no material was produced during the Adjudication Proceedings to show that the Banks even sent a single reminder to the Appellant Company with respect to 13 transactions. Ld. Counsel contended that mere letter from the Banks to that effect does not prove that the Appellant Company contravened the provisions of FEMA. Ld. Counsel stated that the Banks i.e. the Authorised Dealer (AD) should have followed up with the Appellant Company for three months from the date of remittance. Ld. Counsel also submitted that no penalty for the same offence could have been imposed upon the individual Appellant. He cited the decisions in the case of Xerox Modi Corp. Ltd. and Innovative Tech Pack Ltd. Ld. Counsel also stated that the penalty imposed was harsh without taking into account that in 2001-02 the Appellant Company had imported goods worth Rs. 188,14,32,338/-. He therefore prayed to allow the two Appeals.

4. Ld. Counsel for the Respondent Directorate submitted that the Citibank vide their letters dated 16.01.2002, 10.02.2002 and 25.08.2015 had furnished the details of remittances made for the import of electronic components by the Appellant Company, where the Bills of Entry had not been submitted. He further stated that the HSBC vide letter dated 14.01.2003 and 15.07.2015 confirmed that the Appellant Company had not submitted the required documents as proof of import with respect to ten transactions. Ld. Counsel stated that after certain adjournments taken by the Appellants, their Counsel submitted on 14.07.2016 that no contravention was indulged in intentionally and prayed for