TaxTMI 
TaxTMI 
2024 (6) TMI 1571
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....equirement to be complied by the importers as specified in para 7A.20 (Chapter 7) of the Exchange Control Manual. M/s. ESAB India Ltd., Mumbai, is one of such importers, which had acquired foreign exchange equivalent to Rs. 1,35,85,795/- and had failed to submit the Exchange Control copy of Bill of Entry of the relevant imports to their authorized dealer as evidencing the import of goods. The department had therefore issued a Show Cause Notice bearing No. T- 4/168/B/SDE/AKB/BE/2002/SCN dated 14.05.2002 to M/s. ESAB India Ltd., Mumbai, for the contravention of Section 8(3) and 8(4) of FERA, 1973 read with para 7A.20 (Chapter-7) of Exchange Control Manual, wherein they were required to show cause in writing as to why adjudicating proceedings as contemplated in Section 51 of the FERA, 1973 should not be held against them for the said contravention. During the previous adjudication proceedings, the Adjudicating Authority vide Order dated 24.02.2004 imposed penalty of Rs. 6,79,28,975/- for contravention of Section 8(3) & 8(4) of FERA, 1973. Thereafter, Special Director, ED Mumbai vide letter dated 28.03.2016 has wrote to District Collector, Ambattour, Chennai to realise the penalty a....
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....d the said Writ Petition vide order dated 27.04.2018 with direction to the appellant Company to file appeal before Special Director (Appeals) within three weeks. Accordingly, Appellant Company filed the appeal, before Special Director, as per liberty given by Hon'ble Bombay High Court. Respondent ED challenged the said order before Hon'ble Supreme Court of India, on the ground that appeal before Special Director appeal is not maintainable and accordingly Hon'ble Supreme Court of India vide judgment dated 29.01.2019 held that appeal before Special Director (Appeals) is not maintainable. Appellant company accordingly requested for transfer of its appeal to the Appellate Tribunal, however, Ld. Special Director vide order dated 12.06.2019 disposed of the appeal being not maintainable. Aggrieved by the said order dated 15.03.2017, appellant filed the appeal before this Appellate Tribunal. 3. During the arguments learned counsel for the appellant submitted that during the adjudication proceedings appellant company in order to prove the import of consignment filed the documents to show the import of consignment viz. copy of Bill of Entry, copy of Bill of Lading, Invoice copy, Pac....
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....ated to the Invoice amount. The amount mentioned in the Original BOE is SEK 2806000 which is the CIF Madras Total Amount represented as [B] in the table above. He pointed out that this break-up of amounts is also specified in page no. 2 of the Invoice (page 61- Annexure-E). However, the Customs Authorities have revised the BOE for customs purposes and enhanced the assessable value for payment of customs duty to SEK 3518000. Ld. Counsel for the appellant argued that this revised value in the BOE is only for the purposes of payment of customs duty, whereas the actual consideration for the transaction remains SEK 2539400 after adjustment of advance payment, as shown in the Invoice. Accordingly, he submitted that as the evidence of import has been submitted to the authorised dealer bank, there is no contravention of section 8(3) and Section 8(4) of FERA and the Exchange Control Manual, in any manner. Ld. Counsel for the appellant contended that Section 8(4) of FERA only required that import should be proved and does not require that Exchange Control Copy of Bill of Entry is the only manner in which import can be proved. In this regard, he placed reliance on the decision of the Hon'....
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....f of import, penalty cannot be imposed merely for the lack of Exchange Control Copy of the BOE. On similar lines, he placed reliance on the decision of the Hon'ble Appellate Tribunal in case of Ingram Micro India Vs. UOI reported at 2018 SCC Online ATFEMA 11, para 12-13, 18, 23, 26, and 27, and Sun Star Future Wood Ltd., Vs. Special Director reported at 2015 (324) ELT 600 (ATFE), para 6-8. In view of the above judicial precedents, he submitted that Section 8(3) and 8(4) of FERA have not been violated in any manner and the impugned order imposing penalty is incorrect and erroneous. He stressed that penalty cannot be imposed merely because it is lawful to do so and must be imposed only when the facts and circumstances warrant imposition of penalty. In support of his contention, he relid upon the judgment of the Hon'ble Supreme Court of India, in case of Hindustan Steel Ltd Vs. State of Orissa reported at 1978 ELT (J159), wherein it laid the following guidelines: "....An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted....
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....the appellant till date. Prayer is accordingly made to dismiss the present appeal, and thereby, uphold the impugned order, being just and reasonable after thorough consideration. 5. After hearing the rival submissions, we have given our thoughtful consideration to the same. We are of considered view that appellant is able to prove the import of goods against the Foreign Exchange obtained from the Authorized Agent State Bank of India for the purpose of import, by producing the photocopies of the Bill of Entry. Annexure B page 56 reflects Bill of Entry No. 417 of 1998. This is triplicate copy of the Bill of Entry wherein value of consignment is mentioned as SEK 2806000, however, after assessment by the Custom Authorities the revised Bill of Entry was filed which is at page 57 marked as Annexure C wherein after assessment the value of second-hand imported machinery was revised to SEK 3518000. The corresponding Bill of Lading and invoice no. 980113 which are at page 59 to 61 annexed with the letter of SBI dated 30.04.2008 Annexure D at page 58 of the appeal paper book. We are satisfied with the proof of import of consignment mentioned herein and also pointed by learned counsel for a....