2008 (1) TMI 1008 - AT - FEMA

Appeal Dismissed: Tribunal Upholds Penalty for Failure to Repatriate Export Proceeds Amid Buyer Bankruptcy.

The Tribunal dismissed the appeal, upholding the adjudication order and penalty for failing to repatriate export proceeds under the FER Act. It concluded ... - Issues:- Appeal against adjudication order imposing a penalty for contravention of FER Act by failing to repatriate export proceeds within the prescribed period.- Interpretation of sections 18(2) and 18(3) of FER Act regarding the obligation of exporters to repatriate export proceeds.- Displacement of adverse legal presumption under section 18(3) by taking reasonable steps for repatriation.- Evaluation of the reasonableness of steps taken by the appellant in repatriating export proceeds.- Impact of bankruptcy of the foreign buyer on the obligation to repatriate export proceeds.- Assessment of the appellant's failure to take reasonable steps within the statutory period and the relevance of bankruptcy proceedings.Analysis:The appeal was filed against an adjudication order imposing a penalty for the appellant's failure to repatriate export proceeds within the prescribed period under the FER Act. The appellant exported goods in 1990 but faced challenges in receiving payment due to the foreign buyer's bankruptcy. The appellant argued that it should not be held guilty for the delay in repatriation due to the buyer's bankruptcy. However, the respondent contended that the statutory provisions of sections 18(2) and 18(3) of the FER Act place an obligation on exporters to repatriate proceeds within a specified period, failing which adverse presumptions arise.The Tribunal emphasized that the exporter's duty is to make reasonable efforts for repatriation, irrespective of the actual receipt of payment. The legal obligation is to take best endeavors suitable for the circumstances. The statutory provisions create a presumption of non-compliance if payment is not received within the prescribed period. The appellant's argument regarding the pending write-off request to RBI was deemed insufficient to displace the adverse presumption, as no concrete steps were taken to repatriate the proceeds.The Tribunal analyzed the reasonableness of the steps taken by the appellant, considering the timeline of events leading to the foreign buyer's bankruptcy. Despite the appellant's claims, the Tribunal agreed with the respondent's assertion that reasonable steps were not taken within the statutory period of six months. The delay in addressing the issue until after the buyer's bankruptcy was deemed unacceptable, as exporters are expected to act promptly to repatriate proceeds.In conclusion, the Tribunal dismissed the appeal, upholding the adjudication order and the imposed penalty. The Tribunal found no merit in the appellant's arguments and emphasized the importance of exporters taking timely and reasonable steps for repatriation of export proceeds. The appellant was directed to deposit the penalty within a specified timeframe, failing which enforcement action would be taken in accordance with the law.