TaxTMI 
TaxTMI 
2010 (11) TMI 611
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....nd M/s. Betty Blanc SA, France. The appellant had realised only a part of the amount in respect of one export bill i.e. export made to M/s. N.X. General Trading Company, UAE. (b) From the investigation conducted by the Directorate of Enforcement, it appeared that during 1996-97, the appellant firm had effected shipments of cotton and cotton products to M/s. N.X. General Trading Co., UAE, M/s. S.A. Arguel, France and M/s. Betty Blanc.SA, France for a total export value of US $ 1,55,166.57 and after realising US $ 18,362.05, the appellant failed to realise the outstanding export proceeds to the tune of US $ 1,36,804.52 within the stipulated period and in the prescribed manner, thereby contravening the provisions of Section 18(2) read with Section 18(3) of the Foreign Exchange Regulation Act (FERA'), 1973. Hence, the respondent issued a show cause notice dated 7-1-2000, proposing adjudication proceedings for violation of FERA, 1973 for non-realising the outstanding export proceeds within the stipulated time. The specific charge against the appellant was that for the non-repatriating the outstanding proceeds by way of foreign exchange to the country within the stipulated period....
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....hough the purchaser company had gone into liquidation? 4. Learned Senior Counsel for the appellant submitted that in the show cause notice issued by the respondent department, they made a charge against the appellant that an amount of USD 1,36,804.52 against 6 GR forms mentioned in the said notice is outstanding and not repatriated the export proceeds, as referred to under Section 18 of FERA, 1973. In this regard, the learned senior counsel for the appellant, by inviting the attention of this Court to each G.R. submitted that in respect of G.R. Nos. AJ 483280 dated 8-4-1996 and AM 039439 dated 10-12-1996 under which the export was made to M/s. N.X. General Trading Company, UAE., the invoice value was US $ 32871.25 and 12600.00 respectively and the amounts outstanding in US $ were 14509.20 and 12600.00. But the other four - shipments under G.R. Nos. AM 751497 dt. 4-7-1997, AM 751051 dt. 17-7-1997, AM 751050 dt. 19-7-1997 under which the export was made to SA. Arguel, France and AN 937148 dated 5-11-1997 relating to Betty Blanc. France, nothing was realised. 5. In this regard, the learned senior counsel submitted that M/s. N.X. General Trading Company, UAE., was carry....
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....the said submissions, the learned Special Counsel appearing for the respondent submitted that under Rule 8 of FERA Rules, full export value of the goods exported should be realised within a period of six months from the date of shipment of the goods. If the exporter is not in a position to realise the goods, he has to obtain permission from the Reserve Bank, who is the only authority to extend the period; but in the instant case, the appellant had not approached the Reserve Bank for extension of time. Under such circumstances, it cannot be construed that the appellant had taken all reasonable steps to secure the export proceeds. Therefore, there is a violation of the provisions of Sections 18(2) read with 18(3) of the FERA and as such, no fault could be found in the order passed by the respondent. 7. By way of reply, the learned senior counsel for the appellant submitted that the various correspondences exchanged between the appellant and the overseas buyers would show that the appellant had taken all reasonable steps to recover the payment of the goods. But the respondent, without considering the same, has come to the conclusion as if the appellant had not taken effective ....
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....ught to have accepted the case of the appellant that they had taken the reasonable steps. 10. In this regard, now the question arises is, whether the correspondence produced by the appellant that had been exchanged between themselves and their Agent-Commercial and the Legal Representative are sufficient enough to come to the conclusion that the appellant had taken necessary and reasonable steps to recover the amount or not? But, according to the respondent, the said correspondences are internal in nature and as such, no reliance could be placed to these documents. According to the respondent, it is the case of the appellant that they are not in a position to recover the amount. When that being the position, as per Rule 8 of FERA Rules, the appellant ought to have approached the Reserve Bank for getting extension of time and the Reserve Bank might have waived the recovery of the amount; but, in the instant case, the said legal requirement was not complied with by the appellant. Therefore, it cannot be construed that the appellant had taken all reasonable steps. Per contra, it is the defence of the appellant that when it has become sure that the recovery was not possible sinc....
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.... scrutinize the restrictions placed by the Legislature as carefully as possible. In order to decide whether a restriction is reasonable or not, the Court must look at the nature of the restriction, the manner in which it is imposed, its extent, both territorial and temporal, and if after considering all this the Court comes to the conclusion that the restriction is unreasonable, then the restriction is not justified and the Court will not uphold that restriction. Teshingbhai Ishwarlal v. Emperor, A.I.R. 1950 Bom. 363 at pp. 366-67. It is difficult to say what is reasonable unless regard be had to the circumstance of each case with reference to which the word "reasonable" is to be interpreted. Where a contract has to be performed or duty discharged within a reasonable time (or within no specified time which connotes a reasonable time) such time will have to be determined according to the circumstances of the case and with particular reference to the means and ability of the person by whom the contract is to be performed or the duty discharged. An obligation to perform a contract within a reasonable time does not require so speedy a fulfilment as one to be done "directly" or "as s....