9911796707
TMI Blog2013 (11) TMI 1540X X X X Extracts X X X X X X X X Extracts X X X X ..... observed from the said list forwarded by the bank that there were eight export bills for a total value of Rs. 1,64,90,623/- in respect of export of fabrics and garments made during the period from August, 1998 to January, 2001 pending realisation. 2. Further several summons were issued to Mr. Sharavan Kumar, partner, of the firm for his appearance before the Assistant Director of Enforcement, Chennai, but he did not respond on some pretext or the other. However, he finally appeared on 11-9-2003, on which date he was examined with reference to the pending export bills, and his statement was recorded. In his statement, inter alia, stated that as per his records, there were seven bills for a total value of Rs. 1,66,72,214/- pending realisation, in respect of M/s. Dhaneswara Overseas. He also furnished a list of such outstanding export bills. When he was confronted with the statement of pending export bills forwarded by M/s. Tamil Nadu Mercantile Bank Limited, which shows eight pending export bills for a total value of Rs. 1,64,90,623/- he clarified that G.R. No. AP784860, dated 23-7-1998, for US$ 900, in respect of export made to M/s. Gold Champa International Inc., New York, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending export bills furnished by the Tamil Nadu Mercantile Bank, he like his brother Shri Sharavan Kumar clarified that he understood from his brother Shri Sharavan Kumar that Reserve Bank of India had given an extension in respect of 5GRS up to 10-11-2003 and that he was not aware whether any further extension was given by the Reserve Bank of India thereafter. Since, Mr. Sharavan Kumar was attending to the work, Mr. Daman Prakash further stated that the business of the firm was stopped with effect from 31-3-2001, that he was not involved in the affairs of M/s. Dhaneswara Overseas and that after 1999, he was not looking after the business which was taken care of by his brother Shri Sharavan Kumar. 5. It was seen from the foregoing facts of the case that M/s. Dhaneswara Overseas, as per the statement furnished by their bankers M/s. Tamil Nadu Mercantile Bank had export outstanding of Rs. 1,64,90,623/- in respect of 8 GRS. No extension of time/waiver has been given by the Reserve Bank of India beyond 10-11-2003 as would be seen from the above said letters of Reserve Bank of India. Shri Sharavan Kumar and Daman Prakash being the partners of the firm were responsible for the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1996 and his son Kishore Kumar was inducted as a partner from 16-11-1996, Ragraj and Daman Prakash, from the firm as well as the partners are assessed to income-tax, that the firm has been carrying on business of exports from 1992/1993, that in the last three previous years, the position is that : Financial Year Total Export Amount Due 1998/1999 4,13,93,182 Nil 1999/2000 4,15,09,845 62,91,707 2000/2001 1,30,03,387 1,03,78,798. 8. The Original Authority/Special Officer of the Enforcement Directorate of Enforcement has carefully gone through the evidence on record and passed order as follows : (i) I impose penalty of Rs. 30,00,000/- (Rupees Thirty Lakh only) on M/s. Dhaneswara Overseas under the provisions of Section 13(1) of FEMA, 1999 and I also impose penalty of Rs. 8,00,000/- (Rupees Eight Lakh Only) each on Shri Sharavan Kumar and Daman Prakash, partners of the said firm under the said Act. (ii) The penalty imposed should be deposited in the Office of the Deputy Director, Enforcement Directorate, Shastri Bhawan, III Block, III Floor, No. 26, Haddows Road, Chennai, in the form of demand draft drawn in favour of the Pay and Accounts Officer, Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... steps taken by the firm for realization of the export proceeds. In the absence of the finding in this regard, the order is liable to be set aside. Further, the Reserve Bank of India exonerated the appellant's firm. 12. The very competent counsel further submits that the appellant herein was not participating in any of the affairs of the partnership firm. Further, there is no material evidence that the appellant had participated in the appellant's firm administration. He had never signed any cheque or documents or corresponding communications or any negotiations with third parties. In the absence of documentary proof the respondent had given findings which is not sustainable under law and also not fit to be proceeded with any further. The appellant had withdrawn from the partnership firm and he had also withdrawn a major portion of the capital share invested by him even in the year 1997-1998, as such the appellant had no nexus with the said firm. The partnership firm for the year 2000-2001 pertaining to the assessment year 2001-2002, therefore the appellant is not liable to pay any penalty amount imposed on him. The respondents had not produced any relevant documents to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponsible for conduct of business of company are liable for criminal action - Signatory of cheque which is dishonoured is clearly responsible and will be covered under Section 141." 2010 (3) MWN (Cr.) DCC 28 (SC) "Negotiable Instruments Act, 1881 (26 of 1881), Section 141 - Criminal Procedure Code, 1973 (2 of 1974), Section 482 - Offence by Company - Vicarious liability of Directors of Accused-Company - Absence of specific allegations against Directors/Respondents - Effect - Except averments in complaint to effect that Respondents, 'RJ', 'SJ' and some other accused were Directors of Accused-Company and were responsible and liable for acts of Company, no specific allegation made against any of them - Question of proving a fact, not mentioned in complaint, does not arise - No material disclosed in complaint to make out a case against respondents to effect that they had been incharge of affairs of Company, and were responsible for its action - Petitioner/Complainant relied on mistaken presumption that Respondents/Directors were vicariously liable for acts of Company - In absence of specific allegations, High Court held that Complaint was liable to be quashed and respondents were liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by M/s. Tamilnadu Mercantile Bank Limited which showed 8 export pending bills for a total value of Rs. 1,64,90,623/-. Further one of the partners Mr. Sharavan Kumar had openly admitted that the appellant herein is also a partner of M/s. Dhaneswara Overseas, who also is responsible for the conduct of the firms business. Additionally as per the letter given by the Tamilnadu Mercantile Bank, it was confirmed that the said pending bills are belonging to M/s. Dhaneswara Overseas. 16. The highly competent counsel Mr. K. Ramasamy further submits that as per the letter issued by the Reserve Bank of India, Mr. Sharavan Kumar and Mr. Daman Prakash the appellant herein being the partners of the firm were respectively responsible for the conduct of the firm during the relevant period. The learned counsel has also filed a counter statement and submitted further arguments. Mr. Sharavan Kumar furnished a list of such outstanding export bills, when he was confronted with the statement of pending export bills forwarded by the Tamilnadu Mercantile Bank which showed spending export bills for a total value of Rs. 1,64,90,623/-, he clarified that G.R. No. 9.AP784860, dated 23-7-1998 for US$ [90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Overseas. The 2nd respondent in exercise of the powers under Regulation 13 of the Foreign Exchange Management Regulations, 2000, RBI issued the orders agreeing for condonation of non-realization of export proceeds and writing off the outstanding amount subject to the condition of the exporter should surrender to the proportionate amount of incentives. Further, the appellant cannot claim the benefit of condonation under the said order unless the condition namely, surrender a proportionate amount of incentives to the Commissioner of Customs has been complied with by the exporter concerned. However, the condition has not been complied with as stipulated in the order passed by the 2nd respondent, as such the appellant cannot seek to claim any benefit under the said order dated 23-2-2005 of the 2nd respondent, therefore the learned counsel entreats the Court to dismiss the above appeal. 19. Considering the factual position of the case and arguments advanced by the learned counsel on all sides and on perusing the impugned order passed by the 1st respondent, this Court does not find any discrepancy in the conclusion arrived at for dismissing the appeal. The view of this Court that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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