2003 (5) TMI 544 - AT - FEMA

Summary

Issues:
1. Contravention of section 18(2) and 18(3) of FERA, 1973.
2. Barred adjudication proceeding due to application before Board of Industrial and Financial Reconstruction.
3. Maintainability of proceeding due to ECGC cover.
4. Premature proceeding in the absence of RBI's consideration.
5. Failure to recover export proceeds from foreign buyers.
6. Imposition of penalties on the company and directors.
7. Interpretation of "permission" in FERA, 1973.
8. Non-realization of export proceeds beyond the control of the Appellant.
9. Applicability of section 68 of FERA in penalty proceedings.

Analysis:
1. The case involved an appellant with export outstanding without RBI permission, leading to a notice for contravention of FERA, 1973. The appellant argued that the adjudication proceeding was barred due to an application before the Board of Industrial and Financial Reconstruction.

2. Another substantial plea was the ECGC cover obtained by the company for the export bills, suggesting that the proceeding was not maintainable as insurance payment would constitute foreign exchange realization.

3. The appellant had initiated steps for recovery through a lawsuit in the USA against foreign buyers, alongside seeking write-off consideration from the bank. The adjudicating officer considered the appellant's failure to take appropriate steps for recovery.

4. The officer imposed penalties on the company and directors, leading to an appeal challenging the findings. The appellant argued that continuous efforts were made to recover proceeds, and the ECGC cover should have been considered for non-realization.

5. The appellant also contended that the charges were not established, emphasizing the interpretation of "permission" under FERA, 1973, and citing cases to support their argument. They highlighted that non-realization was due to reasons beyond their control.

6. The appellant referenced legal precedents to challenge the application of section 68 of FERA in penalty proceedings, arguing against the respondent's position based on a Bombay High Court ruling.

7. The Tribunal ultimately allowed the appeals, quashing the penalties imposed on the appellants. The decision was based on the belief that the proceedings were misconceived and untenable, emphasizing the ECGC cover and the efforts made for recovery as crucial factors in the case.