2019 (8) TMI 137 - AT - FEMA

Non-realisation of exports proceeds - guilty of contravention of Section 18(2) and 18(3) of FERA, 1973 - It was the case of the respondent that the appellants have failed to take reasonable steps to realize the export proceeds the RBI had not granted any permission to the appellants for extension of time or for writing off the same - HELD THAT - It is noticed by the Hon ble High Court in para-5 of the order that on perusal of the impugned orders passed by the Appellate Tribunal, it is seen that the Tribunal has not considered the Bank Certificates furnished by the petitioner, which prime facie suggest that the export proceeds have been realized by the appellants. Since the Tribunal has not considered the said Bank Certificates, in our opinion, it is just and proper to set aside the impugned orders of the Appellate Tribunal and direct the Tribunal to pass fresh order on the waiver applications filed by the appellants. It has come on record that the export proceeds have been realized by the appellants. The documents have been filed. No contrary submissions have been made, nor evidence is produced. Impugned order set aside - appeal allowed.

Summary

Issues:
Appeal against Adjudication Order under FERA for non-realization of export proceeds.

Analysis:
The appellants filed appeals against an Adjudication Order dated 12.09.2001, where they were found guilty of contravening Section 18(2) and 18(3) of FERA, 1973 by not realizing export proceeds amounting to US$ 9,90,913.98. The respondent argued that the appellants did not take reasonable steps to realize the export proceeds, and even RBI did not grant permission for extension or writing off the amount. However, the appellants provided a list of export dues realized along with supporting documents, which the respondent did not deny.

Regarding a specific item in the Show Cause Notice, it was realized during the adjudicating proceedings, as confirmed in the appellants' reply. Additional evidence, including a letter from RBI, a list of outstanding exports, and a realization certificate from a bank, was submitted. The original penalty imposed on the appellants was significant, and an Appellate Tribunal order directed them to deposit the entire penalty amount.

Subsequently, the High Court noted that bank certificates submitted by the appellants, indicating realization of export proceeds, were not considered by the Tribunal. The High Court set aside the Tribunal's orders and directed a fresh decision on waiver applications. After hearing both sides, it was established that the export proceeds had indeed been realized by the appellants, with no contradictory evidence presented. Therefore, in the interest of justice, the impugned order was set aside, and the appeals were allowed without costs.