9911796707
TMI Blog2008 (9) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mathur, for the Respondent. [Judgment]. - These three appeals have been filed under Section 54 of the Foreign Exchange Regulation Act, 1973 (for short 'the Act of 1973') read with Section 35 of the Foreign Exchange Management Act, 1999 (for short 'the Act of 1999'), by M/s. Taiyabi Khilona Store and its two partners, being aggrieved against the judgment and order dated 21-11-2007 passed by the Appellate Tribunal for Foreign Exchange in Appeal Nos. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o submitted that penalty cannot be imposed upon a person who made all bona fide efforts to realise the sale consideration. According to the learned counsel for the appellants, the appellants made their all efforts which is evident by the various documents which have been placed by the appellants in these appeals, which according to the learned counsel for the appellants, were also before the authorities below, which clearly shows that the appellants made all 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 penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Company under the provisions of the Act of 1973 and, therefore, penalty can be imposed against the Firm as well as against firm's partners separately. It is also submitted that the authorities have found that the partners were responsible for the business of the firm and further it is submitted that even if it has not been said so in the impugned orders even then the partners are liable for the penalty and they are supposed to show that they were not the incharge 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to procure the sale proceeds thereof. For the sake of argument, if it is presumed that sale is not completed with the delivery of the goods to the buyer then the appellants in the facts of the case is the firm and its partners are the persons who were authorised to sell the goods and also could have procured the sale price. Therefore, where buyer has not received the delivery of the goods but the goods have been transported to the foreign country then it is as per 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith in the same manner as any Company by virtue of explanation (1) to Section 68 of the Act of 1973. The firm's partners can be held liable for the mischief committed during the course of business in the name of the firm who are incharge and are responsible for the conduct of the business of the company. There is lot of difference between work of company and company's status and the liabilities and responsibilities as compared to status-and liabilities of the partners of the 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
