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TMI Blog2010 (9) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Authority to demonstrate that the notice issued to them on28th February 2002was without jurisdiction. The facts necessary to even prima facie draw the inference of violation of Section 18(2) FERA by the Petitioners do not exist in the present case. - SCN issued by DoE set aside. - 9864-71 of 2003 - - - Dated:- 23-9-2010 - S. Muralidhar, J. REPRESENTED BY : S/Shri R.K. Virmani, Senior Advocate with Nikhil Nayyar and Ashish Kothari, Advocates, for the Petitioner. [Order]. The challenge in this writ petition under Article 226 of the Constitution is to a show cause notice dated 4th December 2003 issued by the Commissioner, requiring the Petitioners to appear before the Adjudicating Officer/Commissioner for a hearing on 17th December 2003 pursuant to a Memorandum issued by the Deputy Director, Directorate of Enforcement ( DoE ) on 28th February 2002 asking the Petitioners to show cause why they should not be proceeded against for contravention of the provisions of Section 18(2) of the Foreign Exchange Regulation Act, 1973 ( FARA ). 2. The factual background is that during the years 1992-93, the Petitioner No. 1 Company effected shipment of goods valued at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... render the original consignee copy along with the invoice and further instructed to pay one side freight enabling TCIL to rebook the goods covered under the five consignments to be delivered inIndia. 5. The Petitioners state that from the above reply it appeared that TCIL was still in custody of the goods in question. A further reminder was sent on31st July 1993to TCIL. In reply thereto TCIL made a commitment for re-booking of all the consignments in 15-20 days toDelhi. TCIL again held out that the goods were in its lawful custody. That was reiterated by TCIL on11th September 1993as well. It appears that TCIL kept doing a flip-flop on whether in fact the entire goods were still in its custody. By a letter dated11th September 1993the TCIL had stated that the consignments were lying in its godown in a safe condition. However, by a subsequent letter dated29th September 1993signed by Shri I.L. Mishra, Controller of Operations of TCIL it was informed that four consignments had already been delivered and documents sent to the parties directly. 6. Faced with the above situation, Petitioner No. 1 filed a complaint being Original Petition No. 341 of 1993 against TCIL before the National ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation Proceeding Appeal Rules, 1974 (hereinafter the Rules). It is submitted that in terms of Section 49(3) FEMA, a sunset period of two years had been granted for the issuance of a show cause notice. It is submitted that since the show cause notice dated 28th February 2002 was issued within the sunset period which expired on 31st May 2002, the proceedings initiated against the Petitioners was entirely in accordance with law. It is further submitted that the Notification dated28th August 2003authorising the Adjudicating Officer to act as such did not cause any prejudice to the Petitioners. 10. In rejoinder, it was submitted by the Petitioners that all reasonable steps had been taken to receive back the goods in question and therefore the provisions of Section 18(2) FERA were not attracted at all. It was submitted that the show cause notice dated28th February 2002was not proceedings within the meaning of Section 49(3) FEMA since it was issued by Shri A.K. Lawande, Deputy Director who was not the Adjudicating Officer within the meaning of Section 49(3) FEMA. It was submitted that no Notification prior to31st May 2002empowering Shri A.K. Lawande to act as an Adjudicating Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under Section 51 of the repealed Act after the expiry of a period of two years from the date of the commence of this Act. (emphasis supplied) 17. The impugned notice dated4th December 2003was issued by the adjudicating officer who was authorised in terms of the notification dated28th August 2003. By this notice, the Petitioners were informed of the date of hearing before the Adjudicating Officer. However, under Section 49(3) FEMA, the Adjudicating Officer who takes notice of the contravention, and who consequently issued the notice dated28th February 2002had been authorized as such. No such notification has, however, been produced. 18. In the circumstances, this Court is constrained to observe that there is no notification placed on record to negative the contention of the Petitioners that the officer who issued the notice dated28th February 2002lacked the proper authorization to do so in terms of Section 49(3) FEMA. This would have the inevitable effect of vitiating the entire procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that he had taken all reasonable steps to receive or recover the payment for the goods . Therefore, he has to show one of the two things. Either that he took reasonable steps to receive the goods or recover the payment for the goods. 21. In the considered view of this Court, the Petitioners have, in the instant case, been able to show that the Petitioner No. 1 took all reasonable steps to receive back the goods that had been despatched for export. The Petitioner No. 1 wrote to TCIL asking it to re-book the consignment for the delivery back atNew Delhi. TCIL, for reasons best known to it, was unable to do so. It first stated that all the six consignments were in its custody. Later it contradicted this by stating that four of the consignments had been delivered to the consignee. There is already a finding rendered by the NCDRC on this aspect. Since that judgment is pending consideration before the Supreme Court, this Court does not wish to comment on the aspect any further. However, for the purposes of Section 18(2) read with 18(3) FERA, all that an exporter has to show is that he took all reasonable steps to receive back the goods. Petitioner No. 1 took steps to receive the go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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