TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 460
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....s partners S/Shri Beni Prasad Pandey, Shyam Dhar Pandey, Mata Dhar Pandey; Pradeep Pandey and Jitendera Pandey for contravention of Section 18(2) r/w Section 18(3) FER Act (FERA), 1973, on the reasons that the appellant failed to take reasonable steps for repatriation of export proceeds of US $ 23580.02 in respect of goods exported under 3 GRIs. This Tribunal while disposing of the application for dispensation of pre-deposit penalty by order dated 16-8-2010 allowed 40% dispensation of penalty but directed the appellants to make pre-deposit of 60% of total penalty within 30 days from that date. It is stated that the appellant has made pre-deposit in compliance with the directions of this Tribunal and submitted copy of receipt of the respecti....
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....vil Suit and were properly advised by the RBI. Mere filing of the Civil Suit will not absolve them of the liability under Section 18(2) & 18(3) of the Act to realise the payment of the exported goods. In these circumstances, I am unable to accept their uncorroborated version that they had taken all steps to realise the export proceeds". 4. I have extensively heard the parties. The ld. counsel for the respondents submitted that the ld. adjudicating officer has rightly held the appellants guilty of contraventions of Section 18(2) & 18(3) of FERA, 1973 as they have neither taken any reasonable steps to realise the export proceeds of 3 pending GRIs nor provided any evidence to controvert the same. 5. The appellants contended that th....
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....larity and must, therefore, be set aside." 6. In view of the above contention of the appellants, before arriving at any finding I take myself to the impugned order whereunder the joint penalty on the appellant firm and its partners was imposed. While going through the order of penalty, I have noted that there is hardly any discussion on the role of the partners that led to non-realisation of the export proceeds of the 3 GRs and the ld. adjudicating officer has not arrived at any finding to show that the partners were responsible for non-realisation of the export proceeds. Section 68(1) of FERA, 1973 lays down the provision for monetary penalty on the partner only when it is found that he was in charge of, and was responsible to, the c....
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....be attributed to the appellant. Therefore, the finding of the ld. adjudicating officer that he is unable to accept that the appellants had taken all reasonable steps to realize the export proceeds is contrary to the records filed before this Tribunal. Further he submitted that the appellants had filed a Civil Suit but before the outcome of the said Civil Suit, the ld. adjudicating officer passed the impugned order. 9. I have given my due consideration to the contentions and submissions of the appellants and found that they are not without merits. It appears to me from the correspondence exchanged between the appellants and the authorized dealer Punjab National Bank that the appellants had been realizing full amounts of export proceeds....
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....t shall be made within 90 days from the Bill of Lading to the bank and documents shall be obtained from the corresponding bank of the authorized dealer Punjab National Bank but the consignment got released by the foreign buyer from the shipping company by fabricating appellant's letter head and signature on it without obtaining the original document from the authorized dealer. Despite repeated follow up by means of correspondence and even personal visit of the appellant, the payment could not be realized from the foreign buyer. Hence, the suit was filed making the shipping companies, foreign buyer and its agents and the authorized dealer parties to it. He also submitted that the evidence of correspondences with foreign buyer, authorized dea....
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....umentary evidence in respect of progress/development in the court case concerning the three pending GRs. It is evident from the said letter of 24-6-1999 that the RBI was duly informed by the authorized dealer about the suit filed by the appellants in respect of three pending GRs and it was because of this fact that they wrote to Punjab National Bank to furnish evidence in respect of filing suit. Therefore, the finding to the contrary is liable to be set aside. 14. I have given our careful consideration to the respective submissions by the parties. On plain reading of the sub section (2) and sub section (3) of Section 18 of FERA, 1973, it is crystal clear that the Act does not render non-realisation of export proceeds per se punishable....