9911796707
TMI Blog2023 (6) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... The decree could not be executed in India due to lack of assets of the importer in India. The appellants claimed that, execution of the decree in the foreign country where the importer was situated was not cost effective and feasible. In the facts of the present case, the explanation offered by the appellants with regard to inability to execute the decree obtained is plausible. The appellants adequately explained the steps taken by them to receive or recover the payment of the goods exported. The steps taken by the appellants in filing a suit and obtaining a decree thereon within the extended period is a reasonable step taken to receive and recover the payment of the goods exported within the meaning of Section 18(3) of the Act of 1973. Such facts rebut the statutory presumptions of Section 18(3) of the Act of 1973. The impugned show cause notice, the adjudication order passed thereon and the impugned order of the appellate authority are set aside. - FEA/13/2009, FEA/15/2009,FEA/16/2009,FEA/17/2009, FEA/18/2009,FEA/19/2009, FEA/20/2009 - - - Dated:- 8-6-2023 - HON BLE JUSTICE DEBANGSU BASAK AND HON BLE JUSTICE MD. SHABBAR RASHIDI For the Appellants : Mr. Sudhir Meht ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second contentions of the appellants. Rejection of the second contention of the appellants will appear from paragraph 17 of the impugned order of the appellate authority. 8. Bereft of unnecessary details, the factual matrix relevant for consideration of the impugned order of the appellate authority dated March 2, 2009 are as follows : (i) Appellant company exported materials under 3GR on or about March 29, 1996. (ii) Prescribed period within the meaning of Section 18 of the Act of 1973 initially expired on September 30, 1996. The appellant company did not receive the entirety of the price of goods sold and delivered from the importer. (iii) Appellant company filed a suit being CS/299/1999 before the Hon ble High Court at Calcutta on May 17, 1999 seeking recovery of the balance price of goods sold and delivered being the subject-matter of the export. (iv) Prescribed period was extended by the Reserve Bank of India till May 31, 2000. (v) Appellant company applied for extension of the prescribed period before the Reserve Bank of India which application was returned due to incomplete documentation. (vi) The impugned show cause notice dated May 3, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority or before the appellate authority or even before this Court to establish that, the appellants took any steps for the purpose of executing the decree at the relevant place. The appellants took no steps to either approach the country at which, assets of the foreign buyer were available to execute the decree passed by the Hon ble High Court at Calcutta. The appellants did not institute a suit at a place where the foreign buyer was situated to obtain a decree from such court. Therefore, the steps taken by the appellants in filing the suit before the Hon ble High Court at Calcutta and obtaining a decree thereon should not be construed to be a reasonable steps within the meaning of Section 18(3) of the Act of 1973. 12. Section 18(3) of the Act of 1973 is as follows : 3. Where in relation to any goods to which a notification under clause (a) of sub-section (1) applies the prescribed period has expired and payment therefor has not been made as aforesaid, it shall be presumed, unless the contrary is proved by the person who has sold or is entitled to sell the goods or to procure the sale thereof, that such person has not taken all reasonable steps to recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect, we are unable to accept the contentions of the respondent that, filing of the suit before a court of law in India for the balance price of the goods exported did not constitute taking reasonable steps to receive or recover the payment of the goods within the meaning of Section 18(3) of the Act of 1973. Export occurred from India. Courts in India would, therefore, be competent to adjudicate upon the issues relating to the export including suit for recovery of the balance of the price of the goods sold and delivered. In the facts of the present case, it is nobody s case that, the court passing the decree on the suit filed by the appellants, acted without jurisdiction. 17. The contention of the respondents that, the appellants took no steps to execute the decree or took no steps to file a suit at a place where the foreign buyer was situated and therefore it cannot be said that the appellants took all reasonable steps in terms of Section 18 (3) of the Act of 1973, is unacceptable in the facts and circumstances of the present case. The appellants explained their conduct in filing the suit in India and not approaching a court where the foreign buyer was situated on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diments must be factored in to consider as to whether the steps taken by the exporter to receive or recover the payment of the goods exported constitutes all reasonable steps within the meaning of Section 18 (3) of the Act of 1973 or not. 20. In the facts of the present case, the exporter company exported goods of the invoice value of US$ 8,37,200 and received payment of a portion thereof leaving a sum of US$ 6,37,200 outstanding. The exports took place in 1996. Suit was filed for recovery and a decree with regard thereto was obtained. The decree could not be executed in India due to lack of assets of the importer in India. The appellants claimed that, execution of the decree in the foreign country where the importer was situated was not cost effective and feasible. In the facts of the present case, the explanation offered by the appellants with regard to inability to execute the decree obtained is plausible. 21. In such circumstances, we find that, the appellants adequately explained the steps taken by them to receive or recover the payment of the goods exported. The steps taken by the appellants in filing a suit and obtaining a decree thereon within the extended period is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
