1992 (5) TMI 206 - AT - FEMA

Tribunal Orders Reevaluation of Appeals; Fresh Order Due in 3 Months for Fair Adjudication, Evidence Review Emphasized.

The Appellate Tribunal remanded both appeals to the Adjudicating Officer for reevaluation, directing a fresh order within three months. The Tribunal ... - Issues:- Imposition of penalty under section 18(2) of the Foreign Exchange Regulation Act, 1973 for failure to realize export proceeds.- Challenge to the findings of the Adjudicating Officer in Appeal No. 535 of 1989.- Similar grounds raised in Appeal No. 533 of 1989.- Examination of whether reasonable steps were taken to recover the export value of the goods.- Consideration of change in terms of payment from COD to 90 days grace period.- Legal tenability of not realizing reduced value of goods offered by the buyer.- Requirement of taking all reasonable steps to repatriate export value to avoid violation of section 18(2).- Review of documents and correspondence to determine if all relevant facts were considered.- Exercise of discretion in imposing penalties and the need for a judicious decision.Analysis:The judgment involves the imposition of a penalty under section 18(2) of the Foreign Exchange Regulation Act, 1973 for the failure to realize export proceeds totaling US $4,530. The Adjudicating Officer found the appellants guilty based on various grounds, including the non-realization of export proceeds, unauthorized change in payment terms, and lack of evidence showing sincere efforts to recover the amount. The appellants challenged these findings in Appeal No. 535 of 1989, citing errors in law and fact, asserting they made efforts to recover the proceeds, and disputing the allegations of non-compliance. Similar arguments were raised in Appeal No. 533 of 1989, indicating a commonality in the grounds of challenge.The judgment delves into the requirement of taking all reasonable steps to recover the export value of goods, emphasizing the need for compliance with statutory provisions. It discusses the change in payment terms from COD to 90 days grace period, highlighting that such changes may not necessarily indicate a lack of sincere efforts to realize export proceeds. The legal tenability of not realizing a reduced value offered by the buyer without RBI permission is also examined, stressing that actions contrary to statutory provisions cannot be deemed reasonable under section 18(3).Furthermore, the judgment scrutinizes the documents and correspondence submitted by the parties to assess whether all relevant facts were considered in the adjudication process. It points out discrepancies in the Adjudicating Officer's analysis of the letters and the need for a comprehensive review of the evidence before reaching a decision. The judgment underscores the importance of exercising discretion judiciously in imposing penalties, emphasizing the necessity of considering all pertinent facts to render a legally sound decision.Ultimately, the Appellate Tribunal remands both cases back to the Adjudicating Officer for a fresh order within three months, directing a reevaluation of the evidence and affording parties a fresh opportunity to present their case. Failure to comply with the timeline may result in the refund of the penalty deposited by the appellant, underscoring the significance of a fair and thorough review process in legal proceedings.