TaxTMI 
TaxTMI 
1992 (8) TMI 312
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....973 ('the Act') respectively. 2. Enquiries revealed that during 1980-81, Bismi Tanning Co. (appellant in Appeal No. 130 of 1989) had exported goods valued at US $ 99,753 and that the following export bills were pending realisation: GRI Form No. & Date Invoice Value (In U.S. $) Name of Buyer 1. MAE 166103 14-11-1980 10,380.80 Deupaks GmbH, Frankfurt (W. Germany) 2. " 191670 25-11-1980 5,016.00 " " 3. " 191674 12-12-1980 12,004.80 " " 4. " 191996 2-1-1981 14,785.60 " " 5. " 191547 13-1-1981 6,400.00 " " 6. " 191997 24-2-1981 5,844.80 " " 7. " 191....
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....The Assessing Officer also found Shri P. Abdul Hameed, Managing Partner, guilty of contravention of section 18(2), read with section 68. 5. I have heard the counsel of the parties and have perused the record of the case. 6. The counsel appearing for the appellants submitted that as regards the pending bills pertaining to Deupaks GmbH, West Germany, the appellants had initiated legal proceedings in Germany and obtained a decree for the amount and that the decree, however, could not be executed as the appellants could not remit lawyer's fees for want of funds even though the appellants had obtained the approval of Reserve Bank of India for remitting lawyer's fees of DM 8,000. As regards pending bills concerning Kascgesche Lederb....
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....re the Enforcement Officer on 1-4-1986 that after the decree, Deupaks closed its business. Nor had the appellants mentioned the said fact in their reply to the show-cause notice. Therefore, the contention of the counsel for the appellants that Deupaks had closed its business after the decree is not tenable. 8. From the above, it is quite clear that the appellants' main explanation for non-realisation of the export proceeds is that they could not realise the export proceeds as they were not in a position to remit lawyer's fees to pursue the legal actions against the foreign buyers. This gives rise to a vital question whether such an explanation would be acceptable under section 18(2) read with sub-section (3) thereof. In other wor....
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....view when they vide their letter No. MAEC/ XFT/662/319(B. 195)/1986 dated 22-1-1986 informed the Enforcement Directorate that although they had given timely permission to the exporter (Bismi Tanning Co.) to remit the legal fees, they had failed to utilise the facilities with the result the proceeds of the export in issue could not be repatriated to India and that that was mainly due to the utter negligence on the part of the exporter. 11. While considering the scope and import of section 12(2) which corresponds to section 18(2) the Delhi High Court in Escorts Ltd. v. FERA [1985] 5 ECC 141, observed as follows: "The charge against the appellants, as is apparent from the order of the learned Special Director, is that without any g....
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.... from the above that the Delhi High Court has laid down in the above case two propositions, namely, (i) expenses involved in the realisation of export proceeds would not normally form such basis as may justify refraining from taking any action which has the effect of securing the export proceeds; and (ii) such expenses may, however, form such a basis if it is established that the expenses involved in repatriation of the export proceeds would result in loss of foreign exchange more than the value of the export proceeds. 13. It is not the case of the appellants that they could not realise the export proceeds as the expenses involved for realisation were more than the value of the export proceeds. I, therefore, endorse the conclusion of the....