TaxTMI 
TaxTMI 
2009 (8) TMI 1302
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....appellants for having failed to take reasonable steps for realization of exports proceeds to the tune of US $ 2,53,429.99, being 10 per cent of the final instalment of the total invoice of the value of US $25,34,299.91 from M/s. Bangladesh Power Development Board (BPDB), Dhaka. The exports in question were effected during period 1993-94. The appellants were held guilty by the Adjudicating Officer where being aggrieved these appeals have been preferred by the appellants for setting aside the impugned order. 3. I have heard elaborate arguments from Shri Vipul Kundali, Advocate on behalf of the appellants and Shri A.K. Gautam, Advocate for the respondent and gone through the record, relevant law and judicial pronouncements carefully. The exports were made under 33 GRs to M/s. Bangladesh Power Development Board (BPDB), Dhaka during the year 1993-94. BPDB is a nationalized institution of Bangladesh who invited Global Tender for supply of 11 K.V. and L.V. Poles and associated fittings for its power distribution project in Bangladesh. It is not disputed that the appellants realized 90 per cent of the total amount where 10 per cent dues were not paid by the overseas buyer. It is vehemen....
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....oceeds. On 30-12-1995, the firm came to know from Punjab National Bank that the Board on or about 23-12-1995 purported to invoke all the guarantee bonds and demanded payment of aggregate amount of US $ 7,62,420.78 and BTK 6,43,649.76. The Board decided to forfeit the said bank guarantees. However, the Board gave fake hopes about revalidation of the L/Cs and tactfully managed to have the guarantee bonds revalidated only with the idea to forfeit the amount in violation of the agreement dated 9-5-1995. 6. The suit was thereafter filed against unlawful invocation of bank guarantee along with other charges and the suit was pending. The Appeal was pending before the Hon'ble High Court. The payment was wrongfully withheld by the BPDB despite the fact that goods were supplied as per specifications. The fraudulent attitude was shown by the BPDB. As against it, the appellants have taken bona fide steps in rectifying the defective goods but could not realize the balance payment due to mala fide attitude of BPDB. The copies of the correspondence of the firm with BPDB, copies of the extracts of special conditions of export are produced on record. 7. Under section 18(2) and 18(3) of th....
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.... price of the goods is repatriated or not. The word "steps" convey more "steps" because plural is used but do not pose any difficult in interpretation. However, when prefixed with adjective "reasonable", this Tribunal is required to go to ascertain what amounts to "reasonable steps". 10. At this stage, I am required to ascertain the meaning conveyed by word "reasonable" which is the prescribed standard of legal duty of the exporter and whether steps taken by appellants achieve that standard. In Advanced Law Lexicon by P. Ramanand Aiyar (3rd Edition, Vol. 4 pages 3959 and 3968) the word "reasonable" has been described as follows : "(i) What is 'fair' and proper under the circumstances. (ii) The expression "reasonable" is not susceptible of a clear and precise definition. A thing which is reasonable in one case may not be reasonable in another. Reasonable does not mean the best, it means most suitable in a given set of circumstances. (iii) There is no point on which a greater amount of decision is to be found in Courts of law and equity than as to what is reasonable. It is impossible a priori to state what is reasonable as such in all cases. You ....
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....ble settlement had been continued for long but without any sign of final settlement. It is argued that the appellants tried to keep the contract alive by filing said suit but in the course of the arguments before this Tribunal, learned counsel for the appellants could not explain the progress in the said suit. This implies that even the institution of such suit was only a pretense of an attempt to realize the sale proceeds and not a real and effective step for recovery of the outstanding amount. 13. Filing of suits in the Kolkata High Court which was against from a foreign company for stopping it from invocation of Bank Guarantee outside the jurisdiction of that Court was not an efficacious remedy that could prove the bona fides of the appellants. Even the suits filed before Kolkata High Court for recovery of the dues from the defaulting parties could not constitute a proper remedy and could not be construed as sufficient and reasonable steps taken for realizing the outstanding amounts. It is not the case of the appellants that initiation of legal proceedings in Dhaka would have entailed heavy expenses. 14. The 10 per cent export proceeds of the exports made by the appellants....