TaxTMI 
TaxTMI 
2008 (12) TMI 841
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the reasons that appellants after exporting goods to M/s. Prism Jewellers, Dubai, failed to take reasonable steps for recovery of the outstanding price of US dollars 7,20,000. This Tribunal while disposing off separate application for dispensation of pre-deposit of penalty rejected these applications by order dated 21-5-2007 but allowed the appellants to make pre-deposit of their respective penalty within 30 days from the date of receipt of that order. The appellants challenged the pre-deposit order dated 21-5-2007 of this Tribunal before Bombay High Court when Hon'ble High Court of Bombay by order dated 27-3-2008 allowed these appellants to make pre-deposit of 50 per cent penalty in their respective appeals. The appellants have complied with the pre-deposit order as modified by Bombay High Court. Presently, these appeals are taken up for final disposal on merits. 3. It is required to be described that for non-compliance of pre-deposit order 21-5-2007 of this Tribunal, these appeals were dismissed by order dated 7-9-2007. Later when order dated 27-3-2008 is filed before this Tribunal all these appeals are restored by an order dated 14-7-2008. 4. We have heard Shri Prakas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of FER Act, 1973 which reads as follows :-- "18. Payment for exported goods.-(1) (a)****** (2) Where any export of goods, to which a notification under clause (a) of sub-section (1) applies, has been made, no person shall, except with the permission of the Reserve Bank, do or refrain from doing anything, or take or refrain from taking any action, which has the effect of securing- (A) ** ** ** (a) that payment for the goods- (i) is made otherwise than in the prescribed manner, or, (ii) ** ** ** (3) Where in relation to any goods to which a notification under clause (a) of sub-section (1) applies the prescribed period has expired and payment therefore has not been made as aforesaid, it shall presumed, unless the contrary is proved by the person who has sold or is entitled to sell the goods or to procure the sale thereof, that such person has not taken all reasonable steps to received or recover the payment for the goods as aforesaid and he shall accordingly be presumed to have contravened the provisions of sub-section (2)." 7. Sub-section (3) of section 18 provides that if exporter does not receive payment of goods exp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thorized dealers/bankers where one of the conditions precedent is surrendering of the proportionate export incentives. The appellants herein have not brought on record that how and when they surrendered proportionate export incentives. Also, the appellants have not led this Tribunal to the proof leading to the full or partial satisfaction of these qualifying conditions outlined in Master Circular. Moreover, this is a delegated power available to authorized banker who has not exercised this power in favour of the appellants. This Tribunal cannot use these powers as an appropriate delegate. Therefore, this argument does not contain merit and leads nowhere. It is the delegate alone and not any other authority including this Tribunal who is empowered to act. No other authority can usurp this power, otherwise, scheme of FER Act will stand violated. Hence, this argument is liable to be rejected. Howsoever this policy of RBI will be taken into consideration while arriving at the quantum of penalty. 10. There is no evidence that appellants fulfilled the conditions incorporated in Master Circular of RBI for grant of waiver. In that situation, the argument that authorized banker or RBI fa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rarchical order, i.e., (a) Director of Enforcement (b) Additional Director of Enforcement (c) Deputy Director of Enforcement (d) Assistant Director of Enforcement (e) such other officer of Enforcement as appointed for the purposes of this Act. The contentions are that as per rules of interpretation discussed by S.G.G. Edgar in Craies on Statute Law (Seventh Edition) Page 182, any general word following particular word will always be inclusive of subordinate and not superior class. Similarly, Francis Bennion's Statutory Interpretation, Page 840, is referred describing the "Rank principle" stating that- "Where a string of items of a certain level is followed by residuary words, it is presumed that the residuary words are not intended to include items of a higher rank." 13. Further, Maxwell on the Interpretation of Statutes (12th Edition) Page 305, is pressed where from "Words of Rank" are vehemently pressed. "Analogous to the rules which have been considered so far in this chapter is the curious rule that when words descriptive of persons or things are used in an order descending by rank, general words at the end of the list do not include (although, standing....