Introduction
The Foreign Exchange Management Act, 1999 (FEMA) is the primary legislation governing foreign exchange transactions in India. Failure to comply with its provisions, rules, regulations, orders, or notifications can result in significant penalties imposed by the Adjudicating Authority (AA), following an inquiry into alleged contraventions. Understanding these penalties is crucial for individuals and entities engaging in foreign exchange dealings.
Types of Penalties Under FEMA
Section 13 of FEMA outlines the penalties that can be levied for contraventions. These primarily include monetary fines.
- Monetary Penalties: If any person contravenes any provision of FEMA, or any rule, direction, regulation, order, or notification issued under it, they shall be liable to pay a penalty:
- Up to thrice the sum involved in such contravention, where the amount is quantifiable.
- Up to ₹2 lakh where the amount of contravention cannot be determined or measured.
It is important to note that the Enforcement Directorate (ED) is the agency responsible for investigating contraventions of FEMA. After investigation, they may file a complaint with the Adjudicating Authority, which then holds an inquiry and passes a final order that may include these penalties.
Continuing Contraventions and Daily Penalties Under FEMA
FEMA also addresses situations where a contravention continues over a period of time. In such cases, in addition to the penalties mentioned above, the person shall be liable to pay a further penalty which may extend to ₹5,000 for every day during which the contravention continues. This provision serves as a deterrent for ongoing non-compliance with FEMA regulations.
Civil Imprisonment for Non-Payment of Penalty
A significant consequence of failing to pay the imposed penalty is the potential for civil imprisonment. Section 14 of FEMA specifies the enforcement of the final order, including the recovery of penalties.
- If a person fails to make full payment of the penalty within a period of ninety days from the date on which the notice for payment of such penalty is served on them, they shall be liable to civil imprisonment.
- However, the Adjudicating Authority will not make an order for arrest and detention in a civil prison without providing the defaulter with an opportunity to show cause why they should not be committed to prison. The AA must be satisfied that the defaulter has wilfully failed to pay the penalty or had sufficient means to pay but refused to do so.
- The period of civil imprisonment is also defined under Section 14:
- Where the certificate is for a demand of an amount exceeding ₹1 crore, the detention can be up to three years.
- In any other case, the detention can be up to six months.
- It is crucial to understand that being released from detention does not discharge the liability for the unpaid penalty. The person will still be liable for the arrears, although they cannot be re-arrested under the same certificate of recovery.
Conclusion
Understanding the penalty structure under FEMA is essential for ensuring compliance and avoiding potential legal and financial repercussions. Monetary fines can be substantial, especially when the contravention involves a significant amount of foreign exchange. Furthermore, the concept of continuing contraventions can lead to escalating daily penalties. The most severe consequence of non-payment is the possibility of civil imprisonment, highlighting the importance of adhering to FEMA regulations and promptly addressing any penalties imposed by the Adjudicating Authority. Seeking legal counsel upon receiving any notice related to FEMA contraventions is advisable to navigate the complexities of the Act and ensure appropriate responses are taken.
Citations
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Introduction to Investigation & Adjudication under FEMA – Discussion on penalties and the adjudication process.
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Foreign Exchange Management Act – FEMA – Overview of FEMA and its penalty provisions.
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Excerpts from “146.-Ananya-Singh.pdf” – Provides information on penalties under FEMA.
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Excerpts from “Introduction to Investigation & Adjudication under FEMA” – Explains the final order and enforcement, including penalties and civil imprisonment.
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Excerpts from “Foreign Exchange Management Act – FEMA” – Outlines the penalty framework under the Act.
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Excerpts from “Understanding the Foreign Exchange Management Act” – Mentions Section 13 on penalties.
Article by : Aditya Bhatt
Association: Bhatt and Joshi
