Tribunal Upholds Penalty for Export Proceeds Repatriation Failures; Appeals Dismissed as Meritless.

Smt. Birender Kaur Bajwa Versus Enforcement Directorate

Smt. Birender Kaur Bajwa Versus Enforcement Directorate - TMI Issues:
Challenge to Adjudication Order imposing penalty for failure to realize and repatriate export proceeds in contravention of FER Act, 1973.

Detailed Analysis:

1. The appellants challenged the Adjudication Order imposing a penalty for failure to realize and repatriate export proceeds in contravention of sections 18(2) and 18(3) of the FER Act, 1973. Despite being permitted to deposit a certain amount within 60 days, the appellants failed to appear or be represented, leading to the disposal of the appeal on merit based on available records within the stipulated time frame under FEMA, 1999.

2. The appellants contended that they took all reasonable steps to realize outstanding export proceeds, citing various challenges faced such as delay in shipment and bankruptcy of foreign buyers. They approached the U.S. Bankruptcy Court for write-off after pursuing the outstanding amount diligently. However, the respondent argued that the appellants failed to prove their efforts within the prescribed period and did not follow RBI's advice to approach for the status of outstanding payments, leading to a clear contravention of sections 18(2) and 18(3) of the FER Act.

3. The legal analysis of sections 18(2) and 18(3) of the FER Act highlighted the requirement for RBI permission to secure payment for exported goods and the adverse legal presumption against exporters failing to take reasonable steps to recover proceeds. The judgment cited a Supreme Court decision emphasizing the subjective nature of "reasonable" actions in such cases.

4. The tribunal found that the appellants' actions did not displace the adverse presumption against them under section 18(3) as they failed to provide evidence of timely efforts to recover export proceeds within the prescribed period. The failure to approach relevant authorities like the Indian Embassy or RBI earlier, coupled with the lack of granted write-off, supported the decision to uphold the penalty imposed.

5. Regarding the quantum of penalty, the tribunal deemed it appropriate given the contravention and the penalty amount in relation to the offense. The penalty was considered neither harsh nor excessive, warranting no intervention by the tribunal. Consequently, the appeals were dismissed for lacking merit, with the pre-deposited amount to be appropriated towards the penalty, and the appellants were directed to deposit the remaining penalty within a specified timeframe.

This detailed analysis of the judgment provides a comprehensive overview of the issues involved, the arguments presented by both parties, the legal provisions applied, and the tribunal's reasoning leading to the final decision.