9911796707
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Issues:
1. Challenge to adjudication order imposing penalties for failure to repatriate export proceeds. 2. Contention of reasonable steps taken by the appellants to realize outstanding export proceeds. 3. Failure to produce evidence of efforts in certain export transactions. 4. Interpretation of the legal provisions under FERA, 1973 regarding failure to repatriate export proceeds. 5. Rebutting the presumption under section 18(3) of FERA, 1973. Detailed Analysis: Issue 1: The appellants challenged the adjudication order imposing penalties for their failure to repatriate export proceeds amounting to Rs. 68,09,253. The penalties were imposed under sections 18(2) and 18(3) read with section 68(1) of FERA, 1973. The appellants contended that they made reasonable efforts to realize the outstanding export proceeds but were unsuccessful. They argued that the adjudicating authority discharged them in some cases where RBI agreed to write off the export dues but imposed penalties in other cases. The appellants emphasized that failure to take legal proceedings or specific actions does not automatically amount to contravention of section 18(2) of the Act. Issue 2: The appellants, through their advocate, presented evidence of various steps taken to recover the outstanding export proceeds, including correspondence with foreign buyers, seeking assistance from the Indian Embassy, and approaching RBI for write-offs and extensions. They argued that the essence of the charge under section 18(2) is the lack of reasonable efforts to realize export value, not just late or non-realizations. The advocate referred to legal authorities to support the argument that the focus should be on the exporter's efforts rather than specific actions taken. Issue 3: The respondent contended that the appellants failed to provide evidence of efforts made to recover export proceeds in specific transactions totaling Rs. 60,09,253. The respondent highlighted the lack of documents demonstrating sincere and reasonable efforts towards realizing the export proceeds under these transactions. This lack of evidence was used to support the validity of the impugned order imposing penalties. Issue 4: The Member of the Appellate Tribunal analyzed the legal provisions under FERA, 1973 regarding the failure to repatriate export proceeds. It was emphasized that non-realization of export proceeds alone is not punishable; rather, the Act penalizes the failure of exporters to take all reasonable steps to realize the export proceeds. The reasonableness of efforts is judged based on business considerations and commercial prudence, with each case requiring a contextual assessment of what constitutes reasonable steps. Issue 5: The Member discussed the rebuttable nature of the presumption under section 18(3) of FERA, 1973. It was highlighted that the onus is on the respondent to prove the essential ingredient of the provision, which cannot be shifted to the exporter. In this case, the Member found that the appellants had made plausible efforts to recover export proceeds in certain transactions, leading to a reduction in the penalty amount imposed. The impugned order was deemed unsustainable in law for some transactions, and the penalty was proportionately reduced based on the efforts made by the appellants. In conclusion, the appeal was partly allowed, with the penalty amount being reduced to the recovered sum of Rs. 1,10,000 for certain transactions where the appellants had demonstrated reasonable efforts to recover the export proceeds.
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