TaxTMI 
TaxTMI 
2010 (9) TMI 463
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....f GR forms to a party at Binapole inBangladesh. The consignment was of cotton yarn dyed cloth which was to be dispatched to M/s. Azim Garments Ltd. ('AGL') atDhaka. The consignment was booked for carriage by M/s. Transport Corporation of India Ltd. ('TCIL'). It is stated that TCIL undertook, under the contract of carriage, to deliver the goods to AGL under the order of Islami BankBangladesh,Dhaka. As regards the condition of delivery, it was specifically notified by the carrier TCIL that the consignment covered by the lorry receipt form shall be stored at the destination under the control of TCIL and shall be delivered by the order of the consignee bank, whose name was mentioned in the lorry receipt. The relevant documents in regard to the goods sent to AGL through TCIL were negotiated by the Petitioner No. 1 through the American Express Bank,New Delhi. 3. It is stated that for a long time thereafter Petitioner No. 1 did not receive any payment or receive any advice about the retirement of the documents by the consignee. Petitioner No. 1 accordingly made enquiries from TCL and the banks but could not trace the whereabouts of the goods. Consequently Petitioner No. 1 requeste....
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....er Disputes Redressal Commission ('NCDRC') for recovery of the value of the goods together with interest and costs. 7. For several years thereafter no action was taken by the DoE for any alleged contravention by the Petitioners of Section 18(2) of the FERA 1973. In 1999, the Foreign Exchange Management Act, 1999 ('FEMA') was enacted. Section 49(3) FEMA gave the DoE a sunset period up to31st May 2002for starting adjudication proceedings under the FERA. On28th February 2002a Memorandum was issued by the Deputy Director, DoE asking the Petitioners to show cause why proceedings should not be initiated against the Petitioners for contravention of Section 18(2) FERA. The Petitioners replied to the above memorandum pointing out that reasonable steps had been taken for recovery of the amount for the consignment which had been exported to Binapole inBangladeshand that the non-receipt of the export proceeds was for reasons beyond the control of the Petitioners. Reference was also made to the fact that OP No. 341 of 1993 filed by Petitioner No. 1 against TCIL for recovery of the value of the goods was pending before the NCDRC. 8. After the above reply was submitted, no action ....
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....udicating Officer within the meaning of Section 49(3) FEMA had been provided. 12. Mr. R.K. Virmani, learned Senior counsel appearing for the Petitioners submits that the obligation under Section 18(2) FERA that the Petitioners should take reasonable steps to receive back the goods sent by way of export had been fulfilled in the instant case. Even if the court were not to go by the fact that the Petitioners had also taken steps to recover the value of the goods from TCIL since the matter was sub judice before the Supreme Court, nevertheless as long as the Petitioners were able to show that they had taken reasonable steps to receive back the goods in question, the provisions of Section 18(2) FERA were not attracted. He reiterated other submissions about the notice under Section 49(3) FEMA not having been issued within the sunset period, i.e., on or before31st May 2002and further the notice not having been issued by a properly authorized Adjudicating Officer. 13. Despite the case being heard finally on27th August 2010and22nd September 2010, none appeared for the Respondents on either date. 14. As far as the contention that the notice dated28th February 2002issu....
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....is would have the inevitable effect of vitiating the entire proceedings that followed such notice. 19.  This brings up the last contention of the Petitioners on merits. Sections 18(2) and 18(3) of the FERA read as under : "18.  Payment for exported goods.......... (2) Where any export of goods to which a notification under clause (a) of sub-section (1) applies, has been made, no person shall, except with the permission of the Reserve Bank, do or refrain from doing anything, or take or refrain from taking any action, which has the effect of securing- (A) in a case falling under sub-clause (i) or sub-clause (ii) of clause (a) of sub-section (1),- (a) that payment for the goods- (i) is made otherwise than in the prescribed manner, or (ii) is delayed beyond the period prescribed under clause (a) of sub-section (1), or (b) that the proceeds of sale of the goods exported do not represent the full export value of the goods subject to such deductions, if any, as may be allowed by the Reserve Bank; and (B) in a case falling under sub-clause (ii) of clause (a) of sub-section (1), also that the sale of t....