JASJIT SINGH Vs. FOREIGN EXCHANGE REGULATION APPELLATE BOARD

JUDGEMENT

(1.) These three appeals have been directed as against the order passed by the Foreign Exchange Regulation appellate Board on April 29, 1980 in Appeal nos. 329, 371 and 372 of 1979. These three appeals were filed before the Foreign Exchange Regulation Appellate Board by the appellants as against the orders passed by the Assistant Director of Enforcement under the provisions of the Foreign Exchange regulation Act, 1973 bearing No. T-4/154/ ad (ONC) /b/79 dated 30th July, 1979. The appellant in appeal No. 371 of 1979 and 372 of 1979 are the directors of Associated Capsules Private Limited which company is appellant in appeal No. 329 of 1979. These two directors and the Company, namely, Associated Capsules Private Limited are the persons who have challenged the above referred order. The penalty has been imposed by the assistant Director of Enforcement for violation of provisions of section 9 (1) (a) and 9 (l) (d) of the Foreign Exchange Regulation Act, 1973. The said order was confirmed by the appellate tribunal and therefore this appeal under section 54 of the Foreign Exchange regulations Act, 1973 is preferred.

(2.) The facts in the present matter are not disputed, namely, one Mr. Hansen who was a Danish national came to India sometime in 1950 and married an Indian lady and stayed in India till 1975. Mr. Hansen left India along with his family members which included Indian lady who was his wife, in the year 1975. While Mr. Hansen was in India, he was staying in a rented premises known as "grey Dawn" Gamber's Estate, s. V. Road, Mumbai, at the rate of Rs. 800/-per month inclusive of the furniture in said bungalow. While leaving India in June-1975, mr. Hansen entered into an agreement of care taker with appellant Company. Therefore, the appellant company continued to make payment of Rs. 800/- per month to landlord mr. Mascarenhas till 1st February 1978 when the premises were handed over by the appellants to Mr. Marcarenhas- landlord of the said premises. Thus, it is admitted position that from 13. 6. 1975 to September 1976 rent of the premises known as "gray Dawn" was paid by the appellants to Mr. Marcarehas landlord for and on behalf of the Mr. Hansen, a Danish national. Taking into cosideration these facts, the penalty was imposed by the director of Enforcement under section 9 (1) (a) and 9 (l) (d) of the said Act which was confirmed by the appellant Tribunal.

(3.) Learned Counsel appearing on behalf of the appellant submitted that the definition of a "person resident in India" as available from Clause (p) of section 2 of the said act has been misconstrued by the authorities to hold that Mr. Hansen is a "resident outside India" and the payment for and on behalf of a foreign national has been made by the appellants. In order to scrutinise this aspect, the relevant portion of the definition clause (p) for our consideration is Clause (iii) , which is as follows: (p) "person resident in India" means - (iii) a person, not being a citizen of India, who has come to, or stays in India, in either case - (a) for or on taking up employment in India, or (b) for carrying on in India a business or voca-tion in India, or (c) for staying with his or her spouse, such spouse being a person resident in India, or (d) for any other purpose, in such circumstances as would indicate his intention to stay in india for an uncertain period : explanation.-A person, who has, by reason only of paragraph (a) or paragraph (b) or paragraph (d) of sub-clause (iii) been resident in india, shall, during any period in which he is outside India, be deemed to be not resident in India;