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TMI Blog2008 (9) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 71/05, 72/05 and 73/05. These three appeals have been preferred because of the reason that the appellant-Firm and its partners have been held guilty for violation of the provisions of Section 18(3) of the Act of 1973 and penalty of Rs. 1,00,000/- has been imposed upon the Firm and its two partners separately. 2. Brief facts of the case are that M/s. Taiyabi Khilona Store, a partnership firm having its two partners Abas Ali and Smt. Nazneen exported goods through its courier M/s. Container Movement (Bombay Transport Private Limited) to its buyer M/s. PAK Britannnia Limited, London (England). The said goods were worth £ 16553. According to the appellants, the document relating to the said export work sent to the Bank in London on 6-2-1996 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serious and bona fide efforts for recovery of the amount with full intention to brought the foreign currency within the India. 4. The learned counsel for the appellants lastly contended that if it is held that the appellant-Firm was guilty under Section 50 and was liable to be penalized for its fault then the authorities have committed serious error of law by imposing penalty upon the Firm as well as upon the partners. According to the learned counsel for the appellants, the Firm is a compodium of the individual and is not an entity akin to company which can have its own assets and liability irrespective of the assets liability of its Director. In addition to above, according to the learned counsel for the appellants even if it is held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge of the firm. 6. I considered the submissions of the learned counsel for the parties and perused the relevant provisions of law. Section 18(3) of the Act of 1973 is as under :- "18(3) Wherein relation to any goods to which a notification under cl. (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 receive or recover the payment for the goods as aforesaid and he shall accordingly be presumed to have contravened the provisions of sub-section (2)." 7. The above section clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Act of 1973, it is duty of such exporter to bring the money (the foreign currency) within the Indian territory. The learned counsel for the appellants vehemently submitted that the appellants have not gained any thing in this transaction and in fact suffered due to the fault of the buyer and in fact he suffered loss. It is immaterial whether the seller gained from the transaction or suffered loss in the transaction. It is not a tax on income. It is also immaterial whether in fact he received the sale consideration or not, because of the reason that the provisions of Section 18 clearly provides that seller is required to show his efforts for bringing within the territory of India the foreign currency for export of goods from the India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm. It is also true that there may be sleeping partners and some passive part and some active partners. Because of this fact only, it appears that the provisions applicable generally for the company for determination of the liability for commission of offence, have been made applicable to the firm by making specific provisions, i.e., explanation (1) to Section 68 of the Act of 1973. In view of the above reasons, the firm's partners who are responsible for the conduct of the business and were responsible and incharge at the relevant time, can be personally held liable. In this case, the firm, was found guilty and this cannot be disputed in view of the fact that mere writing one after another letters to the buyer by the seller is not a suf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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