37. Power of search, seizure, etc.—
(1) The Director of Enforcement and other officers of
Enforcement, not below the rank of an Assistant Director, shall take up for investigation the contravention
referred to in section 13.
(2) Without prejudice to the provisions of sub-section
(1), the Central Government may also, by
notification, authorise any officer or class of officers in the Central Government, State Government or the
Reserve Bank, not below the rank of an Under Secretary to the Government of India to investigate any
contravention referred to in section 13.
(3) The officers referred to in sub-section
(1) shall exercise the like powers which are conferred on
income-tax authorities under the Income-tax Act, 1961 (43 of 1961) and shall exercise such powers,
subject to such limitations laid down under that Act.
1
[37A. Special provisions relating to assets held outside India in contravention of
section 4.—
(1) Upon receipt of any information or otherwise, if the Authorised Officer prescribed by the
Central Government has reason to believe that any foreign exchange, foreign security, or any immovable
property, situated outside India, is suspected to have been held in contravention of section 4, he may after
recording the reasons in writing, by an order, seize value equivalent, situated within India, of such foreign
exchange, foreign security or immovable property:
Provided that no such seizure shall be made in case where the aggregate value of such foreign
exchange, foreign security or any immovable property, situated outside India, is less than the value as
may be prescribed.
(2) The order of seizure along with relevant material shall be placed before the Competent Authority,
appointed by the Central Government, who shall be an officer not below the rank of Joint Secretary to the
Government of India by the Authorised Officer within a period of thirty days from the date of such
seizure.
(3) The Competent Authority shall dispose of the petition within a period of one hundred eighty days
from the date of seizure by either confirming or by setting aside such order, after giving an opportunity of
being heard to the representatives of the Directorate of Enforcement and the aggrieved person.
1. Ins. by Act 20 of 2015, s. 142 (w.e.f. 9-9-2015).
16
Explanation.—While computing the period of one hundred eighty days, the period of stay granted by
court shall be excluded and a further period of at least thirty days shall be granted from the date of
communication of vacation of such stay order.
(4) The order of the Competent Authority confirming seizure of equivalent asset shall continue till the
disposal of adjudication proceedings and thereafter, the Adjudicating Authority shall pass appropriate
directions in the adjudication order with regard to further action as regards the seizure made under
sub-section
(1):
Provided that if, at any stage of the proceedings under this Act, the aggrieved person discloses the
fact of such foreign exchange, foreign security or immovable property and brings back the same into
India, then the Competent Authority or the Adjudicating Authority, as the case may be, on receipt of an
application in this regard from the aggrieved person, and after affording an opportunity of being heard to
the aggrieved person and representatives of the Directorate of Enforcement, shall pass an appropriate
order as it deems fit, including setting aside of the seizure made under sub-section
(1).
(5) Any person aggrieved by any order passed by the Competent Authority may prefer an appeal to
the Appellate Tribunal.
(6) Nothing contained in section 15 shall apply to this section.]
38. Empowering other officers.—
(1) The Central Government may, by order and subject to such
conditions and limitations as it thinks fit to impose, authorise any officer of customs or any central excise
officer or any police officer or any other officer of the Central Government or a State Government to
exercise such of the powers and discharge such of the duties of the Director of Enforcement or any other
officer of Enforcement under this Act as may be stated in the order.
(2) The officers referred to in sub-section
(1) shall exercise the like powers which are conferred on
the income-tax authorities under the Income-tax Act, 1961 (43 of 1961), subject to such conditions and
limitations as the Central Government may impose.
CHAPTER VII
MISCELLANEOUS
39. Presumption as to documents in certain cases.—Where any document—
(i) is produced or furnished by any person or has been seized from the custody or control of any
person, in either case, under this Act or under any other law; or
(ii) has been received from any place outside India (duly authenticated by such authority or
person and in such manner as may be prescribed) in the course of investigation of any contravention
under this Act alleged to have been committed by any person,
and such document is tendered in any proceeding under this Act in evidence against him, or against him
and any other person who is proceeded against jointly with him, the court or the Adjudicating Authority,
as the case may be, shall—
(a) presume, unless the contrary is proved, that the signature and every other part of such
document which purports to be in the handwriting of any particular person or which the court may
reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in
that person’s handwriting, and in the case of a document executed or attested, that it was executed or
attested by the person by whom it purports to have been so executed or attested;
(b) admit the document in evidence notwithstanding that it is not duly stamped, if such document
is otherwise admissible in evidence;
(c) in a case falling under clause
(i), also presume, unless the contrary is proved, the truth of the
contents of such document.
40. Suspension of operation of this Act.—
(1) If the Central Government is satisfied that
circumstances have arisen rendering it necessary that any permission granted or restriction imposed by
this Act should cease to be granted or imposed, or if it considers necessary or expedient so to do in public
17
interest, the Central Government may, by notification, suspend or relax to such extent either indefinitely
or for such period as may be notified, the operation of all or any of the provisions of this Act.
(2) Where the operation of any provision of this Act has under sub-section
(1) been suspended or
relaxed indefinitely, such suspension or relaxation may, at any time while this Act remains in force, be
removed by the Central Government by notification.
(3) Every notification issued under this section shall be laid, as soon as may be after it is issued,
before each House of Parliament, while it is in session, for a total period of thirty days which may be
comprised in one session or in two or more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions aforesaid, both Houses agree in making any
modification in the notification or both Houses agree that the notification should not be issued, the
notification shall thereafter have effect only in such modified form or be of no effect, as the case may be;
so, however, that any such modification or annulment shall be without prejudice to the validity of
anything previously done under that notification.
41. Power of Central Government to give directions.—For the purposes of this Act, the Central
Government may, from time to time, give to the Reserve Bank such general or special directions as it
thinks fit, and the Reserve Bank shall, in the discharge of its functions under this Act, comply with any
such directions.
42. Contravention by companies.—
(1) Where a person committing a contravention of any of the
provisions of this Act or of any rule, direction or order made thereunder is a company, every person who,
at the time the contravention was committed, was in charge of, and was responsible to, the company for
the conduct of the business of the company as well as the company, shall be deemed to be guilty of the
contravention and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to punishment
if he proves that the contravention took place without his knowledge or that he exercised due diligence to
prevent such contravention.
(2) Notwithstanding anything contained in sub-section
(1), where a contravention of any of the
provisions of this Act or of any rule, direction or order made thereunder has been committed by a
company and it is proved that the contravention has taken place with the consent or connivance of, or is
attributable to any neglect on the part of, any director, manager, secretary or other officer of the company,
such director, manager, secretary or other officer shall also be deemed to be guilty of the contravention
and shall be liable to be proceeded against and punished accordingly.
Explanation.—For the purposes of this section—
(i) “company” means any body corporate and includes a firm or other association of individuals;
and
(ii) “director”, in relation to a firm, means a partner in the firm.
43. Death or insolvency in certain cases.—Any right, obligation, liability, proceeding or appeal
arising in relation to the provisions of section 13 shall not abate by reason of death or insolvency of the
person liable under that section and upon such death or insolvency such rights and obligations shall
devolve on the legal representative of such person or the official receiver or the official assignee, as the
case may be:
Provided that a legal representative of the deceased shall be liable only to the extent of the inheritance
or estate of the deceased.
44. Bar of legal proceedings.—No suit, prosecution or other legal proceeding shall lie against the
Central Government or the Reserve Bank or any officer of that Government or of the Reserve Bank or
any other person exercising any power or discharging any functions or performing any duties under this
Act, for anything in good faith done or intended to be done under this Act or any rule, regulation,
notification, direction or order made thereunder.
45. Removal of difficulties.—
(1) If any difficulty arises in giving effect to the provisions of this Act,
the Central Government may, by order, do anything not inconsistent with the provisions of this Act for
the purpose of removing the difficulty:
18
Provided that no such order shall be made under this section after the expiry of two years from the
commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each
House of Parliament.
46. Power to make rules.—
(1) The Central Government may, by notification, make rules to carry
out the provisions of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for,—
(a) the imposition of reasonable restrictions on current account transactions under section 5;
1
[(aa) the instruments which are determined to be debt instruments under sub-section
(7) of
section 6;
(ab) the permissible classes of capital account transactions in accordance with
sub-section (2A) of section 6, the limits of admissibility of foreign exchange, and the prohibition,
restriction or regulation of such transactions;]
(b) the manner in which the contravention may be compounded under sub-section
(1) of
section 15;
(c) the manner of holding an inquiry by the Adjudicating Authority under sub-section
(1) of
section 16;
(d) the form of appeal and fee for filing such appeal under sections 17 and 19;
(e) the salary and allowances payable to and the other terms and conditions of service of the
2
[Special Director (Appeals)] under section 23;
(f) the salaries and allowances and other conditions of service of the officers and employees of the
3
[office of the Special Director (Appeals)] under sub-section
(3) of section 27;
(g) the additional matters in respect of which the Appellate Tribunal and the Special Director
(Appeals) may exercise the powers of a civil court under clause
(i) of sub-section
(2) of section 28;
4
[(gg) the aggregate value of foreign exchange referred to in sub-section
(1) of section 37A;]
(h) the authority or person and the manner in which any document may be authenticated under
clause (ii) of section 39; and
(i) any other matter which is required to be, or may be, prescribed.
47. Power to make regulations.—
(1) The Reserve Bank may, by notification, make regulations to
carry out the provisions of this Act and the rules made thereunder.
(2) Without prejudice to the generality of the foregoing power, such regulations may provide for,—
5
[
(a) the permissible classes of capital account transactions, the limits of admissibility of foreign
exchange for such transactions, and the prohibition, restriction or regulation of certain capital account
transactions under section 6;]
(b) the manner and the form in which the declaration is to be furnished under clause
(a) of
sub-section
(1) of section 7;
1. Clauses (aa) and (ab) shall stand inserted (date to be notified) by Act 20 of 2015, s. 143.
2. Subs. by Act 7 of 2017, s. 165, for “Chairperson and other Member of the Appellate Tribunal and the Special Director
(Appeals) (w.e.f. 26-5-2017).
3. Subs. by s. 165, ibid., for “Appellate Tribunal and the office of the Special Director (Appeals)” (w.e.f. 26-5-2017).
4. Ins. by Act 20 of 2015, s. 143 (w.e.f. 9-9-2015).
5. Clause
(a) shall stand substituted (date to be notified) by s. 144, ibid., to read as under:
“
(a) the permissible classes of capital account transactions involving debt instruments determined under sub-section
(7)
of section 6, the limits of admissibility of foreign exchange for such transactions, and the prohibition, restriction or
regulation of such capital account transactions under section 6;”.
19
(c) the period within which and the manner of repatriation of foreign exchange under section 8;
(d) the limit up to which any person may possess foreign currency or foreign coins under
clause
(a) of section 9;
(e) the class of persons and the limit up to which foreign currency account may be held or
operated under clause
(b) of section 9;
(f) the limit up to which foreign exchange acquired may be exempted under clause
(d) of
section 9;
(g) the limit up to which foreign exchange acquired may be retained under clause
(e) of section 9;
1
[(ga) export, import or holding of currency or currency notes;]
(h) any other matter which is required to be, or may be, specified.
2
[
(3) All regulations made by the Reserve Bank before the date on which the provisions of this section
are notified under section 6 and section 47 of this Act on capital account transactions, the regulation
making power in respect of which now vests with the Central Government, shall continue to be valid,
until amended or rescinded by the Central Government.]
48. Rules and regulations to be laid before Parliament.—Every rule and regulation made under this
Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in
session for a total period of thirty days which may be comprised in one session or in two or more
successive sessions, and if, before the expiry of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation, or
both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter
have effect only in such modified form or be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of anything previously done under
that rule or regulation.
49. Repeal and saving.—
(1) The Foreign Exchange Regulation Act, 1973 (46 of 1973) is hereby
repealed and the Appellate Board constituted under sub-section
(1) of section 52 of the said Act
(hereinafter referred to as the repealed Act) shall stand dissolved.
(2) On the dissolution of the said Appellate Board, the person appointed as Chairman of the Appellate
Board and every other person appointed as Member and holding office as such immediately before such
date shall vacate their respective offices and no such Chairman or other person shall be entitled to claim
any compensation for the premature termination of the term of his office or of any contract of service.
(3) Notwithstanding anything contained in any other law for the time being in force, no court shall take
cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any
contravention under section 51 of the repealed Act after the expiry of a period of two years from the date
of the commencement of this Act.
(4) Subject to the provisions of sub-section
(3) all offences committed under the repealed Act shall
continue to be governed by the provisions of the repealed Act as if that Act had not been repealed.
(5) Notwithstanding such repeal,—
(a) anything done or any action taken or purported to have been done or taken including any rule,
notification, inspection, order or notice made or issued or any appointment, confirmation or
declaration made or any license, permission, authorization or exemption granted or any document or
instrument executed or any direction given under the Act hereby repealed shall, in so far as it is not
inconsistent with the provisions of this Act, be deemed to have been done or taken under the
corresponding provisions of this Act;
(b) any appeal preferred to the Appellate Board under sub-section
(2) of section 52 of the
repealed Act but not disposed of before the commencement of this Act shall stand transferred to and
shall disposed of by the Appellate Tribunal constituted under this Act;
1. Clause (ga) shall stand inserted (date to be notified) by Act 20 of 2015, s. 144.
2. Sub-section
(3) shall stand inserted (date to be notified) by s. 144. ibid.
20
(c) every appeal from any decision or order of the Appellate Board under sub-section
(3) or
sub-section
(4) of section 52 of the repealed Act shall, if not filed before the commencement of this
Act, be filled before the High Court within a period of sixty days of such commencement:
Provided that the High Court may entertain such appeal after the expiry of the said period of sixty
days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within
the said period.
(6) Save as otherwise provided in sub-section
(3), the mention of particular matters in
sub-sections
(2),
(4) and
(5) shall not be held to prejudice or affect the general application of section 6 of
the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal.
21
