TaxTMI 
TaxTMI 
2008 (11) TMI 752
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....to realize and repatriate outstanding export proceeds under GR No. AD 586855 in contravention of section 18(2) and 18(3) of FER Act, 1973. The dispensation application filed by the appellant came up for hearing before this tribunal on 22.12.2003 when appellant was directed to make pre deposit of Rs. 60,000 of penalty amount within six weeks. It is stated that the appellant has made the pre deposit in compliance with the said order. Presently these appeals are taken up for final hearing on merit. 3. Heard Shri C. Murlikrishna, Ld. advocate for the appellant. The Ld. advocate has also filed the written submission along with supporting volumes (in two volumes) which are taken on record. In addition he filed the application for seeking to ta....
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....It is further contended that in spite of opportunities given by Port authorities at destination port the appellant failed to take any action whereafter the impugned order cannot be blamed. Dr. Shamsuddin, DLA vehemently contended that said cited decision of erstwhile FERA Board is not applicable in the factual matrix of the instant case. 6. In the light of rival contentions it may be profitable to refer to section 18(2) & 18(3) of the Act which reads as under: "18(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 Reserve Bank, do or refrain from doing anything, or take or refrain from taking any action, which has the eff....
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....gly be presumed to have contravened the provisions of sub-section (2)" 7. From perusal of the above provision it is clear gravaman of charge u/s 18(2) and 18(3) of FER Act, 1973 is failure to take reasonable steps for realization of export proceeds and not realization of export proceeds. Thus an exporter is to take reasonable steps for realization of export proceeds. It is well settled that reasonableness is a question of fact and may vary from case to case then what may be regarded as reasonable case in one case may not be so in another. In this regard reference may aptly be made of observations of Supreme court in Veayae M.L. Ammal v. Seeni Amal, JT 2001 (9) SC 145 where the Hon'ble Court declined to give any exact definition of th....
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.... has not brought o record any material showing the alleged request made by the appellant to RBI/authorized dealer for release of foreign exchange to enable to take legal action against the foreign buyer. In such a situation it is difficult to agree with the appellant that reasonable steps for repatriation of goods/export proceeds have been taken. Hence these pleas of the appellant have to be rejected. 9. Reliance has been made on decision of erstwhile FERA Boards in case of SRC Exports Private Ltd. v. Director, Enforcement (supra) in support of the argument that non cooperation of RBI in releasing the foreign exchange to enable the appellant to take legal action against the foreign buyer and inaction of authorized dealer to recover the s....
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....as statutes. In London Graving Dock Co. Ltd. v. Horton (1951 AC 737 at p. 761) Lord Mac Dermot observed: The matter cannot of course be settled merely by treating the ipsissima verta of Willes. J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge." In Home Office v. Dorset Yachi Co. (1970 (2) All. ER 294) Lord Reid said, "Lords Atkin's speech....Is not to be treated as if it was a statutory definition. It will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserve....