2019 (3) TMI 1518

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....ntion of provisions. The operative part of the order reads as under: "I hold Shri Gangadharan Manari guilty of contravening the provisions of Sec.7 and Sec.8 of FEMA, 1999 read with Regulation 3, Regulation 8, Regulation 9(1) and Regulation 13 of Foreign Exchange Management (Export of Goods & Services) Regulation, 2000; Regulation 3 of Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulation, 2000; Regulation 3(2) of Foreign Exchange Management (Manner of Receipts and Payments) Regulations, 2000. Having regard to the facts and circumstances of the case and pursuant to the powers given to me under Section 13(1) of FEMA, 1999, I impose a penalty of Rs. 23,00,000/- (Rupees Twenty Three Lakhs Only) ....

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....o. FPA-FE- 12/CHN/2016 is engaged in the manufacturing of graphite electrodes, impervious graphite equipment, Graphite Specialty products, carbon bricks, Aircraft brake pads and glass fiber reinforced plastic pipes and tanks at their factories at Bangalore, Nashik and Durgapur for domestic and global market. b. Sometime during April 2001, the appellant received an enquiry from M/s Padmaja Impex, Chennai (hereinafter referred to as "Padmaja") for supply of carbon bricks of certain specifications for export. The appellant vide quotation dated 03.03.2001 offered to supply the requisite specifications and quantity of carbons bricks against 50% advance and 50% LC at sight. Padmaja placed an order dated 6 June 2001 for supply of carbons bricks ....

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....ed to as "Directorate") initiated investigation against certain exporters including Padmaja for certain contravention of the provisions of the Foreign Exchange Management Act, 1999 (hereinafter referred to as "FEMA") in export of humanitarian goods to Iraq under Oil for Food Programme. In the course of investigation, officers of the Directorate called information from the appellant and also recorded statements from Sri N. Venkataramani, Director and Sri A. Manani, General Manager of the Applicant. g. On completion of the investigation, the Directorate issued a Show Cause Notice No. T4/08/CHE/2015 dated 31 December 2015 (hereinafter referred to as "Notice") for alleged contravention of Section 3(a) of the FEMA. h. The appellant submitt....

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....d the shipping documents." 7. It was submitted that sole reasons cited for dismissing Regulation 12 is presumption that Padmaja have not furnished any proof of filing of such declaration (SDF). It was submitted that mere failure to submit proof of filing of SDF by Padmaja cannot lead to a conclusion that no such SDF was filed by Padmaja at the time of export of goods. 8. RBI regulations [A D (M.A. Series) Circular No. 4 (February 2, 1999)] and the Public Notice No. 210/98 dated 09.11.1998 issued by the Commissioner of Customs, Chennai, it is mandatory to append SDF to the shipping bill at the time of export. No evidence has been adduced by the Directorate to the effect that SDF required was waived in this particular case. It was submitted....

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.... a procedural exercise. SDF is required to be signed by the exporter and third person to ensure realisation and repatriation of export proceeds. In the present case, export proceeds to the full extent of value of shipping bill were realised and repatriated and even penalty amount of Rs. 23 Lakhs has been deposited on behalf of Padmaja in case of any breach. 12. It is a settled principle of law that the procedures have been prescribed to facilitate verification of substantive requirement, as long as a fundamental requirement is met other procedural deviation can be condoned. Reference is made to the following judgments in this regard: a. Mangalore Chemicals and Fertilizers Limited vs. Deputy Commissioner [1991 (55) ELT 437 (SC)] b. UM C....