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2020 ] SUBORNO BOSE v. ENFORCEMENT DIRECTORATE 9

2000, whereas, the appellant took over the management of the Company in terms
of the Memorandum of Understanding, dated 22-10-2001 entered into in that be-
half. The appellant wanted to argue that in the facts of the present case, there was
no contravention of Section 10(5) of the FEMA Act or any other provision neces-
sitating action under Section 10(6) of the said Act muchless initiating complaint
procedure. Ordinarily, the appellant could have been allowed to pursue such
argument, but for the dismissal of the special leave petition filed by the Compa-
ny. In that, consequent to the dismissal of the petition filed by the Company, the
finding and conclusion recorded by the adjudicating authority as upheld by the
first appellate authority, and of the High Court recording contravention commit-
ted by the Company and for which complaint action was just and proper includ-
ing the imposition of penalty as awarded against the Company and the appellant
has attained finality. That cannot be reopened muchless at the instance of the
present appellant. This is reinforced by the order issuing notice on the special
leave petition filed by the present appellant, dated 30-3-2009. It is indicative of
the fact that the contentions specific to absolve the appellant from the complaint
action could be examined.
8. In other words, the core issue that needs to be considered in the pre-
sent appeal is limited to the defence of the appellant that he could not be made
responsible for the stated contravention. For, he became the Managing Director
of the Company much later i.e. on 22-10-2001. For examining that argument, we
may have to advert to Sections 10(5) and 10(6) of the FEMA Act. The same read
thus :-
“10. Authorised person.-
XXX XXX XXX
(5) An authorised person shall, before undertaking any transaction in for-
eign exchange on behalf of any person, require that person to make such
declaration and to give such information as will reasonably satisfy him that
the transaction will not involve, and is not designed for the purpose of any
contravention or evasion of the provisions of this Act or of any rule, regula-
tion, notification, direction or order made thereunder, and where the said
person refuses to comply with any such requirement or makes only unsatis-
factory compliance therewith, the authorised person shall refuse in writing
to undertake the transaction and shall, if he has reason to believe that any
such contravention or evasion as aforesaid is contemplated by the person,
report the matter to the Reserve Bank.”
(6) Any person, other than an authorised person, who has acquired or
purchased foreign exchange for any purpose mentioned in the declaration
made by him to authorised person under sub-section (5) does not use it for
such purpose or does not surrender it to authorised person within the spec-
ified period or uses the foreign exchange so acquired or purchased for any
other purpose for which purchase or acquisition of foreign exchange is not
permissible under the provisions of the Act or the rules or regulations or di-
rection or order made thereunder shall be deemed to have committed con-
travention of the provisions of the Act for the purpose of this section.”
Additionally, it will be useful to advert to Section 42 of the FEMA Act, which
reads thus :-

EXCISE LAW TIMES  1st April 2020  171