2004 (7) TMI 707 - AT - FEMA

Summary

Issues:
1. Imposition of penalty for failure to repatriate export proceeds under FERA, 1973.
2. Reasonableness of efforts made for repatriation of export proceeds.
3. Liability of partnership firm and partner for penalty imposition.

Analysis:
1. The appeal challenged an Adjudication Order imposing penalties against a firm and its managing partner for failing to repatriate export proceeds in violation of FERA, 1973. The penalties were imposed based on non-repatriation of specific export proceeds, and the appellants contended that the goods were unsold due to market conditions, thus negating the need for repatriation. The Tribunal noted the pre-deposit of 10% of the penalty and proceeded to hear the appeal on merits.

2. The appellants argued that efforts were made to recover the export proceeds, including personal visits by the partner to the foreign market. However, the adjudicating authority found the appellants guilty based on statutory presumptions under FERA, 1973. The Tribunal held that mere visits without concrete evidence of repatriation efforts did not rebut the statutory presumption against the exporter. Consequently, the adjudication order finding the firm guilty was sustained.

3. Regarding the liability of the partnership firm and the partner, the Tribunal reiterated that penalties cannot be simultaneously imposed on both unless guilt is established against the partner. As no evidence was presented to establish guilt against the partner, the Tribunal set aside the penalty imposed on the partner while upholding the penalty against the firm. The Tribunal found the penalty amount reasonable given the substantial non-repatriated funds and allowed the firm to deposit the remaining penalty within 60 days, failing which the respondents could recover the amount as per the law.

In conclusion, the appeal was partly allowed, quashing the penalty against the partner but upholding it against the firm. The firm was granted a limited period to deposit the remaining penalty amount, failing which recovery by the respondents was permitted.