2006 (1) TMI 675 - AT - FEMA

Tribunal Overturns Penalty for Export Proceeds, Recognizes Efforts and RBI Extension in Foreign Exchange Case.

The Tribunal set aside the adjudication order imposing a penalty on the appellant firm for contravening the Foreign Exchange Regulation Act by failing to ... - Issues:Appeal against adjudication order imposing penalty for contravention of Foreign Exchange Regulation Act by failing to repatriate export proceeds.Analysis:The appellant firm filed an appeal against an adjudication order imposing a penalty for contravening the provisions of the Foreign Exchange Regulation Act by failing to repatriate export proceeds. The penalty was imposed for not taking reasonable steps for repatriation of export proceeds amounting to US $81,974. The partners of the firm were also penalized but did not appeal. The Tribunal allowed dispensation of pre-deposit and proceeded to dispose of the appeal on merits solely by the appellant firm. The appellant argued that extensive efforts were made for repatriation, including contacting the foreign buyer, seeking assistance from authorities, and reminders to the recovery banker. The delay in recovery was not due to the appellant's default, as acknowledged in the adjudication order. The appellant also cited a letter from RBI granting an extension for recovery, and relied on previous orders to support their contention.The respondent argued that no extension from RBI was available after the deadline, and the appellant failed to provide evidence of efforts for repatriation. The respondent contended that the efforts were not systematically presented, justifying the adjudication order. The law requires exporters to take reasonable steps for repatriation, and the authorized banker confirmed the repatriation of the amount. The respondent highlighted that the adjudication order did not question the reasonableness of efforts but faulted the presentation style. The respondent emphasized that the efforts were not deemed sufficient and reasonable, leading to the penalty.The Tribunal noted that an extension was granted by RBI until a specified date, and the efforts made by the appellant were acknowledged in the adjudication order. The Tribunal criticized the adjudicating authority for faulting the presentation style of efforts, stating that unsystematic presentation is not a ground for penalty. The Tribunal highlighted that the legal obligation is to take reasonable steps, not improved efforts. The efforts discussed were deemed sufficient to displace the adverse presumption under the Act. Consequently, the Tribunal found merit in the appeal, set aside the impugned order, and allowed the appeal, quashing the penalty.