2008 (6) TMI 646 - AT - FEMA

Summary

Issues Involved:
1. Legality, propriety, and correctness of the adjudication order dated 13th October 2000.
2. Timeliness of filing the revision petitions.
3. Authorization of the person filing the revision petitions.
4. Misdescription of the respondent's name.
5. Legal obligations under Sections 18(2), 18(3), and 68 of the Foreign Exchange Regulation Act, 1973.
6. Presumption and rebuttal under Section 18(3) of the Foreign Exchange Regulation Act, 1973.
7. Fresh adjudication requirement.

Detailed Analysis:

1. Legality, Propriety, and Correctness of the Adjudication Order:
The revision petitions challenge the adjudication order dated 13th October 2000, which exonerated the respondents from charges under Sections 18(2), 18(3), and 68 of the Foreign Exchange Regulation Act, 1973. The Tribunal emphasized that the adjudication officer did not consider whether the respondents took reasonable steps to repatriate the export proceeds of US dollars 3,53,77,745, which remains unrealized. The Tribunal found that the adjudication officer's directive to the RBI to consider price reduction was inappropriate as it limited the RBI's discretion.

2. Timeliness of Filing the Revision Petitions:
The petitions were filed 146 days after the adjudication order, which is less than five months. Although Section 52(4) does not prescribe a limitation period, the Tribunal noted that revision petitions should be filed within a reasonable period. Citing the Supreme Court's judgment in E.S.I. Corporation v. C.C. Santhakumar, the Tribunal stated that the reasonable period depends on the factual circumstances of each case. The Tribunal concluded that the delay was not unreasonable and did not demonstrate waiver or acquiescence by the respondents.

3. Authorization of the Person Filing the Revision Petitions:
The petitions were signed by Shri T.K. Gadoo, DLA, but lacked signatures on behalf of the Enforcement Directorate or Director of Enforcement. The Tribunal ruled that this technicality could not block the route of justice, especially since the impugned order was allegedly passed disregarding settled legal positions.

4. Misdescription of the Respondent's Name:
The respondent's name was incorrectly described as "M/s Saket India, Bangalore" instead of "M/s Saketh India Ltd, Bangalore." The Tribunal held that this was a mere misdescription and not a misidentification. Such minor errors should not result in the failure of prosecution, as the respondent was correctly identified.

5. Legal Obligations under Sections 18(2), 18(3), and 68:
Section 18(2) prohibits actions that would prevent payment for exported goods in the prescribed manner without RBI's permission. Section 18(3) presumes that if payment is not received within the prescribed period, the exporter has not taken reasonable steps to recover the payment unless proven otherwise. The adjudication officer failed to consider whether the respondents took reasonable steps to repatriate the export proceeds.

6. Presumption and Rebuttal under Section 18(3):
The Tribunal highlighted that the presumption under Section 18(3) is rebuttable. The adjudication officer did not evaluate whether the respondents' actions could displace this statutory presumption. The Tribunal emphasized the need for a detailed examination of the steps taken by the respondents to recover the export proceeds.

7. Fresh Adjudication Requirement:
The Tribunal quashed the impugned order and remanded the matter for fresh adjudication, starting from the issuance of the Show Cause Notice. The respondents were directed to appear before the adjudication officer on 11th August 2008, with the expectation that the proceedings would conclude within six months.

Conclusion:
The Tribunal found significant procedural and substantive issues in the adjudication order dated 13th October 2000. It emphasized the need for a thorough re-examination of whether the respondents took reasonable steps to repatriate the export proceeds and directed a fresh adjudication to ensure compliance with legal standards.