2008 (9) TMI 216 - HC - Customs

Penalty imposed on appellant-Firm and its partners for violation of S. 18(3) of FERA of 1973 non-realisation of export proceeds where goods have been exported then it is duty of exporter to bring the money within Indian Territory - no merit in the contention of appellants that since the buyer has not received the value of the goods, therefore, the sale is not complete and, therefore, the penalty cannot be imposed upon the appellant-Firm penalty on partner who was sick not sustainable

Summary

Issues:
Violation of provisions of Section 18(3) of the Foreign Exchange Regulation Act, 1973 leading to penalty imposition on a partnership firm and its partners.

Detailed Analysis:

Violation of Section 18(3) and Imposition of Penalty:
The case involved three appeals filed under the Foreign Exchange Regulation Act, 1973 and the Foreign Exchange Management Act, 1999 by a partnership firm and its partners against a penalty imposed for violating Section 18(3) of the Act of 1973. The firm exported goods to a buyer in London, but the buyer did not take delivery, leading to the confiscation of goods by London authorities. The appellants argued that since the sale was not completed due to non-receipt of goods by the buyer, they should not be penalized. However, the court held that the law presumes a person has not taken reasonable steps to recover payment if goods are not paid for within the prescribed period, leading to a contravention of the Act. The appellants were required to show efforts to bring foreign currency back to India, irrespective of whether the sale was completed or not.

Liability of Firm and Partners:
The court analyzed the liability of the firm and its partners separately. The explanation appended to Section 68 of the Act of 1973 clarified that firms are to be treated similarly to companies, and partners can be held liable for business conduct. The court emphasized that partners responsible for the firm's affairs can be personally held liable for violations. In this case, the firm was found guilty, and the partners were held responsible for the conduct of the business. The court upheld the firm's liability but scrutinized the individual liability of the partners. It was noted that one partner was ill, raising doubts about the other partner's involvement in the firm's affairs. Specific findings of partner responsibility were crucial, and in the absence of such evidence, the individual partner's liability could not be sustained.

Judgment:
The court dismissed the appeal filed by the partnership firm while partially allowing the appeals filed by the individual partners. The penalty against the partners was set aside, considering the specific circumstances and lack of conclusive evidence regarding individual partner responsibilities in the firm's conduct.