Condonation of delay and remand for fresh adjudication where material evidence on export proceeds was not considered.
A procedural requirement to file the condonation application with the appeal was treated as directory, not mandatory, and the delay was condoned because the application was filed before hearing and the explanation showed sufficient cause without deliberate default or negligence. On the merits of the alleged contravention of section 18(2) of the Foreign Exchange Regulation Act, the penalty order was set aside because the adjudicating authority had not considered relevant communication and evidence bearing on delivery of goods and non-realisation of export proceeds. The matter was remanded for fresh adjudication, leaving liability to be determined again on the existing record and documents.
Issues: (i) Whether the delay in filing the appeal should be condoned notwithstanding that the application for condonation was not filed with the memorandum of appeal; (ii) Whether the penalty order for contravention of section 18(2) of the Foreign Exchange Regulation Act, 1973 should be set aside and the matter remanded for fresh adjudication.
Issue (i): Whether the delay in filing the appeal should be condoned notwithstanding that the application for condonation was not filed with the memorandum of appeal.
Analysis: The provision requiring the delay application to accompany the appeal was treated as directory and not mandatory. The application had been filed before the hearing, the explanation disclosed no deliberate default or negligence, and there was sufficient cause to take the application on record and consider it on merits.
Conclusion: The delay was condoned and the appeal was entertained.
Issue (ii): Whether the penalty order for contravention of section 18(2) of the Foreign Exchange Regulation Act, 1973 should be set aside and the matter remanded for fresh adjudication.
Analysis: The alleged contravention depended on whether the goods had in fact been delivered to the foreign buyer and whether export proceeds remained unrealised. The record showed that the adjudicating authority had not considered a relevant communication and the related evidence. In view of the need to verify the documents and examine the issue afresh, the proper course was to set aside the order and remit the matter for reconsideration.
Conclusion: The impugned order was set aside and the matter was remanded for fresh adjudication.
Final Conclusion: The appellant obtained relief against the existing penalty order, but the controversy on liability was left open for fresh determination by the adjudicating authority.
Ratio Decidendi: A procedural requirement may be treated as directory where its object is not defeated and a timely filed application showing sufficient cause can be entertained; where material evidence relevant to the alleged contravention has not been considered, the order may be set aside and the matter remanded for reconsideration.
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AI Drafter ✕
TaxTMI 
