TaxTMI 
TaxTMI 
2011 (1) TMI 315
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....99 (in short, ―FEMA‖) are unconstitutional and void. 2. Briefly stated the relevant facts of the present case are that in the year 1991-1992, the petitioner exported goods worth Rs. 70,70,164/- to M/s. Pinky Original Inc., New York. However, as the foreign purchaser became bankrupt, it did not repatriate the sale proceeds to the petitioner. On 27th February, 2001, Deputy Director, Enforcement Directorate, issued a Show Cause notice to the petitioner alleging violation of Sections 18(2) and 18(3) of FERA. Though in reply to the said Show Cause notice the petitioner sought waiver of repatriation of export proceeds yet the Enforcement Directorate vide its adjudication order dated 23rd December, 2004 imposed a penalty of R....
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.... (B) in a case falling under sub-clause (ii) of clause (a) of sub-section (1), also that the sale of the goods is delayed to an extent which is unreasonable having regard to the ordinary course of trade: Provided that no proceedings in respect of any contravention of the provisions of this sub-section shall be instituted unless the prescribed period has expired and payment for the goods representing the full export value has not been made in the prescribed manner within the prescribed period. 3) Where in relation to any goods to which a notification under clause (a) of sub-section (1) applies the prescribed period has expired and payment therefor has not been made as aforesaid, it shall be presumed, unless the contrary is proved....
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....ations because of failure on the part of the exporter to take all reasonable steps, is unreasonable. He further submits that to require the exporter to secure full realization of the proceeds of the export is to require him to do the impossible. Consequently, Mr. Nedumpara submits that the maxim lex neminem cogit ad vana seu inutilia peragenda, therefore, squarely applies to the present situation. 7. Having heard the learned counsel for the petitioner, we are of the opinion that the impugned provisions of FERA do not compel anyone to do an impossible act. The impugned Sections only raise a presumption against the exporter, but the same can be rebutted by the exporter. Consequently, the impugned provisions are valid. 8. W....
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....aving been placed in the Ninth Schedule thereof, even otherwise, we do not find any reason to arrive at a conclusion that the Act is ultra vires Article 14 of the Constitution of India. A discrimination on the ground of valid classification which answers the test of intelligible differentia does not attract the wrath of Article 14 of the Constitution of India. Hardship, by itself, may not be a ground for holding the said provision to be unconstitutional. xxx xxx xxx 19. A legal provision does not become unconstitutional only because it provides for a reverse burden. The question as regards burden of proof is procedural in nature. (See Hiten P. Dalal v. Bratindranath Banerjee and M.S. Narayana Menon v. State of Kerala.) &....