TaxTMI 
TaxTMI 
2016 (2) TMI 480
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....ipment. It was alleged that a contravention under Section 18(2) of Foreign Exchange Regulation Act, 1973 (hereinafter called FERA, 1973) r/w Central Government Notification dated 1-1-1974 has been made. Show cause notice was issued to M/s. Kanta International and M.L. Gupta, Karta of the firm. However, no reply was received for quite some time. Therefore, adjudication proceedings were initiated. Several, dates for personal hearing were also fixed. Ultimately Shri J.S. Arora, Advocate, appeared for M/s. Kanta International in response and submitted reply dated 23-11-1992. It was pleaded on behalf of the firm that several letters were sent to M/s. S.V. Fashions, PNP Fashions, D.S. Dhillon, M/s. Kerima Fashions Ltd., M/s. L. Sagar Trading Company Limited, etc. It was also contended that an application to the RBI for extension of time for realization was made. The Adjudicating Authority recorded that the State Bank of India has noted that the applications for extension of time limit by M/s. Kanta International relating to 5 GRI forms has been rejected. He also observed that the firm had not approached the Indian Embassy, Chamber of Commerce and Attorneys abroad in an effort to realize ....
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....tion of Section 68(1) of FERA, 1973. 3. Appeal No. 522/1993 has been filed by M.L. Gupta against Adjudication Order No. SDE(R)III/58/93, dated 30-6-1993 whereby a penalty of Rs. 10,00,000/- has been imposed against M/s. M.L. Gupta & Sons (P) Ltd., and a separate individual penalty of Rs. 5,00,000/- against the appellant M.L. Gupta for having contravened provisions of Sections 18(2), 18(3) of FERA, 1973 r/w Central Government Notification and Section 68(1) of FERA, 1973. The allegations were that in the year 1984 the firm effected Shipment of goods valued at Rs. 28,88,662/- and US $ 738.50 and failed to realize & repatriate the sale proceeds within the prescribed period. The Adjudicating Authority found the efforts made for realization to be inadequate. 4. Appeal No. 523/1993 has been filed by the appellant M.L. Gupta, Director M/s. M.L. Gupta & Sons (P) Ltd., against the Adjudication Order dated 30-6-1993 against which connected Appeal No. 522/93 has been filed by the appellant M.L. Gupta on behalf of M/s. M.L. Gupta & Sons. In the instant appeal, a penalty of Rs. 10,00,000/- has been imposed against M/s. M.L. Gupta & Sons (P) Ltd. for having contravened Sections 18(2),....
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....re this Bench on 19-8-2014 on which date in view of the fact that the draft judgment dated 13-1-2011 could not be pronounced by the Bench, appeals were ordered to be reheard. 9. Ms. Pooja Saigal, ld. Counsel for the appellants has submitted that various adjudication orders were passed in the instant appeals. An affidavit each has been filed in all the appeals separately by the appellants stating that the appellants have been making consistent and persistent efforts for realization of proceeds and have realized the complete export proceeds qua the exports that had taken place during the year 1984 and 1985, and against which transactions, show cause notices were issued and subsequently the impugned orders were passed. Further submission is that a chart detailing the export realization has been annexed as Annexure A.1 along with certificates issued by the concerned authorized dealers (Banks) affirming that the export proceeds have been realized and GR forms released in respect of all the shipments except in respect of certain shipments of small amounts. Further submission is that the State Bank has been unable to trace the records to release GR forms and in such cases the appell....
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....ncies such as D.R.I.; Customs; C.B.I., CCI&E & E.D. were ...... after the appellant at the relevant time. Appellant M.L. Gupta was also detained under COFEPOSA due to those circumstances also no effective representation could be made in the adjudication proceedings. The impugned orders are ex parte and against principles of natural justice and were not fair. No financial loss has been caused to exchequer of the country and the appeals deserve to be allowed. 11. Ld. Legal Consultant has defended the impugned orders and has submitted that the appellants have failed to realize the sale proceeds of goods exported within the stipulated period in contravention of the provisions of Section 18 of FERA, 1973 and the Central Government Notifications. The appellants adopted a lack-lusture approach and did not file any reply to the show cause notice for a period of almost five years. Thereafter, their counsel appeared after protracted correspondence and submitted a reply to the show cause notice. Opportunity for personal hearing was also afforded. It had been pleaded in the reply that lot of correspondence was made with buyers and the appellants had also made applications to the RBI for ....
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....ank of India. A certificate confirming the realization of export proceeds has also been issued by the Bank. Canara Bank has also issued a certificate in 2004 stating that Rs. 2,30,545/- has been received. Certificates of CITI Bank, Canara Bank, etc. have also been filed. Details of realization and certificates in a consolidated form of all the appeals from Appeal No. 519/93 to 525/93 have also been supplied and copies filed in other appeals as well. 13. Undisputedly almost the entire export proceeds have been realized but proof of realization has been filed after almost 17 years of filing of appeals. The moot question for determination in the instant appeals is whether the post adjudication realization of export proceeds of transactions which had taken place way back in 1984-84 will have any bearing upon the findings recorded by the Adjudicating Authority of non-compliance and alleged contravention by the appellants. 14. At this stage, we wish to clarify that in our considered view no fruitful purpose will be served by remanding the instant appeals back to Adjudicating Authority for re-determination in view of subsequent realization of export proceeds by the appellants ....
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....tes for personal hearing were fixed and several opportunities were afforded and ultimately Sh. J.S. Arora, Advocate, appeared on behalf of the appellants and filed written submissions out of which only one i.e. relating to show cause notice II were final submissions and in rest of the replies further time for filing detailed reply was sought. It has come that several reminders were sent to the said counsel by the Adjudicating Authority in between December, 1992 and middle of June, 1993 and thereafter, the impugned orders were passed on 30-6-1993. Thus, sufficient time was afforded by the Adjudicating Authority to the appellants to contest and place the record available with them. 17. In our view, the most material and significant aspect is that the fact of non-realization of export proceeds in all the matters within the prescribed period or within the extended period has not been disputed by any of the appellants. Therefore, technically and legally the alleged contraventions were made out against all the appellants. As regards the question as to whether adequate efforts for repatriation were undertaken by the appellants or not, it has been pleaded on behalf of the appellants ....