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TMI Blog2019 (4) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... at despite of several for personal hearing in the remand proceedings, when the appellant did not appear, the matter was adjudicated afresh vide Adjudication Order No. ADJ/28- B/AD(KS)/FERA/2013 dated 27.09.2013 by the Assistant Director of Enforcement and the same penalty of Rs. 5,00,000/- was imposed afresh for contravention of the provisions of Section 18(2) & 18(3) of FERA, 1973 for their failure to realize the export proceeds for an aggregate amount of Rs. 17,85,839/-. 4. The said order has been challenged before this tribunal on various grounds. 5. It is submitted by the appellant that the impugned order is an exparte order passed behind the back of the appellant in complete violation of the principles of natural justice and also a replication of the earlier impugned order passed on 12.10.2001 which was remanded back by this Tribunal vide order dated 18.08.2008 passed in appeal no. 479/2001 to be decided afresh after granting opportunity of hearing to the parties. The Adjudicating Authority in the hearing did not consider the additional documents filed by the appellant, before passing the impugned order. 6. The brief facts are as under: (a) The Appellant M/s Serif Impex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efrain from doing anything which has the effect of securing the payment for the goods is delayed beyond the prescribed period or within such period as extended by RBI and for his failure to do so he can be charged for contravention under this provision which provides as under: "Section 18(2): Where any export of goods .... as been made, no person shall, except with the permission of Reserve Bank, do or refrain from doing anything, or take or refrain from taking any action, which has the effect of securing- In a case falling under sub-clause (i) or sub-clause (ii) of clause (a) of sub-section (1)- (a) The 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)......." 9. The contravention of Section 18(2) consists in lack of reasonable efforts made by the appellant and not in the fact of non-realization of the export value. In the present, it is to be examined as to what is to be considered is whether the appellant had made reasonable efforts to realize the export value in time or not. If the appellant has made positive steps and efforts, the appellant may not be held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resort to legal action by filing a suit in a court of Law for realization of the unpaid export proceeds. Initiating an appropriate legal action against the defaulting buyer is an adequate step for realization of the export proceeds. 16. The Appellant through Advocate Ahmed Ali Marafi instituted a Law Suit No. 29/1997 against Gulf Corporation Factory and its officer Mohd. Ali Al-Sayegh. The total claim of the appellant against the said Gulf Corporation Factory was US$ 92,540.30. The Appellant only filed the Civil Suit for recovery in Suit, but actively pursued the suit for recovering the unrealized export proceeds. 16.1. Pursuant thereto, the appellant appointed advocate Ahmed Ali Marafi for representing them in the suit in Doha. The Appellant has remitted a sum total of US$ -3946.00 to the advocate Ahmed Ali Marafi from time to time after obtaining permission of the RBI. 16.2. After filing of Suit in Doha, the appellant was informed by his Advocate Ahmed Ali Marafi that the factory of the Overseas Buyer had closed down. The Appellant remitted an amount of USD 197 on 19.12.1997 as the cost of advertisement in the newspaper and another sum of 1460 QR for the purpose of summons by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8223;s application either on write off or extension of time, even initiation of adjudication proceedings to charge him with contravention of Section 18(2) r.w. 18(3) is pre-mature and the impugned order is liable to be quashed and set aside on this ground along. In this connection reliance is placed on the following decisions: (i) Gazebo Industries Pvt. Ltd.Vs. DE (1995) Taman 100 (ii) Hira Lal & Sons Vs. DE (1995) 79 Taxman 174 (iii) Rajnis International Vs. DE (1995) 83 Taxman 25 (iv) Wimco Ltd. Vs. DE (1997) 94 Taxman 542 20. There is no specific denial that the appellant has been addressing various correspondence to the Enforcement Directorate on 19.08.1996, 27.08.1996,12.09.1996,28.02.2001, 17.03.2001, 18.04.2001 bringing to their notice apart interacting with all concerned including RBI and the authorized dealer from time to time bringing to their notice the various steps taken by the appellant for recovery of the unrealized export proceeds including filing of suit in Doha shows that the appellant has been making their efforts for realization of the export proceeds. 21. The Appellant has received a judgement dated 22.11.1999 and a copy of report of AI - Mohanadi Au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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