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TMI Blog2011 (1) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... a and in accordance with Article 31-B of the Constitution, none of the Acts specified in the Ninth Schedule can be held ultra vires even if the provisions of the said Act are inconsistent or abridge any of the fundamental rights contained in Part-III of the Constitution of India - The writ petition is dismissed - W.P.(C) 101/2009 - - - Dated:- 7-1-2011 - MR. JUSTICE MANMOHAN, J. For Appellent: Mr. Mathews J. Nedumpara, Advocate with Mr. Rabin Majumdar, Advocate. J U D G M E N T MANMOHAN, J : 1. Present writ petition has been filed seeking quashing of the show cause notice dated 27th February, 2001 as well as the adjudication order dated 23rd December, 2004 primarily on the ground that Sections 18(2) and 18(3) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment for exported goods. xxx xxx xxx 2) Where any export of goods, to which a notification under clause (a) of sub-section (1)--applies, has been made, no person shall, except with the permission of the Reserve Bank, do or refrain from doing anything, or take or refrain from taking any action, which has the effect of securing (A) in a case falling under sub-clause (i) or subclause (ii) of clause (a) of sub-section(1), (a) that payment for the goods (i) is made otherwise than in the prescribed manner, or (ii) is delayed beyond the period prescribed under clause (a) of sub-section (1), or (b) that the proceeds of sale of the goods exported do not represent the full export value of the goods subject to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law does not require anyone to do vain or useless things is the moot point. He further submits that the aforesaid Sections require that every exporter, without fail to repatriate/realize every penny of proceeds of exports of goods, commodities or services. Learned counsel for the petitioner submits that shortfall of even one rupee leads to a presumption that the exporter has not taken all reasonable steps for repatriation and as a consequence both adjudication proceedings and penal prosecution normally follow and the burden of proof is entirely on the exporter. 6. According to Mr. Nedumpara, it is this presumption which is unconstitutional, being absolutely irrational. He submits that to presume that the overseas buyer has not d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 14 of the Constitution of India. It was urged that validity of the said provision must be judged on the touchstone of commercial considerations inasmuch as whether an exporter may not be able to repatriate the export proceeds particularly when such exports are made to the developing countries. 9. .. Such repatriation of exports proceeds, thus, being uncertain, it was urged, the impugned provisions as also the Constitution 39th Amendment Act cannot be sustained. xxx xxx xxx 13. The appellants have questioned the validity of the Act only on the ground of infringement of Article 14 of the Constitution of India. Apart from the fact that the Act is protected under Article 31-B of the Constitution of India having been placed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stioning the constitutional validity of a Parliamentary Act. If the Parliamentary Act is valid and constitutional, the same cannot be declared ultra vires only because the appellant faces some difficulty in writing off the bad debts in his books of accounts. He may do so. But that does not mean the statute is unconstitutional or the criminal prosecution becomes vitiated in law. (emphasis supplied) 9. From the aforesaid, it is apparent that FERA finds place in the Ninth Schedule of the Constitution of India and in accordance with Article 31-B of the Constitution, none of the Acts specified in the Ninth Schedule can be held ultra vires even if the provisions of the said Act are inconsistent or abridge any of the fundamental rights co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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