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TMI Blog2019 (3) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... fore presumption must be that all conditions prescribed under Regulation 12 has been duly complied including the condition with respect to SDF. In absence of any evidence, it cannot be assumed that Authorised Dealer has accepted the shipping documents without SDF. And even no action was taken against the Authorised Dealer if there was no compliance of about SDF. Once the said stand is taken, the onus is on the on the Directorate that Padmaja was allowed export without filing of SDF, and also documents were negotiated by the Authorised Dealer without SDF. In the present case, export proceeds to the full extent of value of shipping bill were realised and repatriated and even penalty amount of ₹ 23 Lakhs has been deposited on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed upon both the appellants respectively for contravention of provisions. The operative part of the order reads as under: I hold Shri Gangadharan Manari guilty of contravening the provisions of Sec.7 and Sec.8 of FEMA, 1999 read with Regulation 3, Regulation 8, Regulation 9(1) and Regulation 13 of Foreign Exchange Management (Export of Goods Services) Regulation, 2000; Regulation 3 of Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulation, 2000; Regulation 3(2) of Foreign Exchange Management (Manner of Receipts and Payments) Regulations, 2000. Having regard to the facts and circumstances of the case and pursuant to the powers given to me under Section 13(1) of FEMA, 1999, I impose a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief facts as per pleadings are hereunder: a. Graphite India Ltd., the appellant in appeal no. FPA-FE- 12/CHN/2016 is engaged in the manufacturing of graphite electrodes, impervious graphite equipment, Graphite Specialty products, carbon bricks, Aircraft brake pads and glass fiber reinforced plastic pipes and tanks at their factories at Bangalore, Nashik and Durgapur for domestic and global market. b. Sometime during April 2001, the appellant received an enquiry from M/s Padmaja Impex, Chennai (hereinafter referred to as Padmaja ) for supply of carbon bricks of certain specifications for export. The appellant vide quotation dated 03.03.2001 offered to supply the requisite specifications and quantity of carbons bricks against 50% adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant refunded an amount of ₹ 327609 to Padmaja. f. The Directorate of Enforcement (hereinafter referred to as Directorate ) initiated investigation against certain exporters including Padmaja for certain contravention of the provisions of the Foreign Exchange Management Act, 1999 (hereinafter referred to as FEMA ) in export of humanitarian goods to Iraq under Oil for Food Programme. In the course of investigation, officers of the Directorate called information from the appellant and also recorded statements from Sri N. Venkataramani, Director and Sri A. Manani, General Manager of the Applicant. g. On completion of the investigation, the Directorate issued a Show Cause Notice No. T4/08/CHE/2015 dated 31 December 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansfer of document as per Regulation 12, which mandated signing of the constituent in the said declaration to make the AD bank accepted the shipping documents. 7. It was submitted that sole reasons cited for dismissing Regulation 12 is presumption that Padmaja have not furnished any proof of filing of such declaration (SDF). It was submitted that mere failure to submit proof of filing of SDF by Padmaja cannot lead to a conclusion that no such SDF was filed by Padmaja at the time of export of goods. 8. RBI regulations [A D (M.A. Series) Circular No. 4 (February 2, 1999)] and the Public Notice No. 210/98 dated 09.11.1998 issued by the Commissioner of Customs, Chennai, it is mandatory to append SDF to the shipping bill at the time of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suming a substantive compliance of the relevant rules has been overlooked, however merely on the ground that SDF was not furnished, as it is only a procedural exercise. SDF is required to be signed by the exporter and third person to ensure realisation and repatriation of export proceeds. In the present case, export proceeds to the full extent of value of shipping bill were realised and repatriated and even penalty amount of ₹ 23 Lakhs has been deposited on behalf of Padmaja in case of any breach. 12. It is a settled principle of law that the procedures have been prescribed to facilitate verification of substantive requirement, as long as a fundamental requirement is met other procedural deviation can be condoned. Reference is made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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