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TMI Blog2009 (8) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... teps for realization of exports proceeds to the tune of US $ 2,53,429.99, being 10 per cent of the final instalment of the total invoice of the value of US $25,34,299.91 from M/s. Bangladesh Power Development Board (BPDB), Dhaka. The exports in question were effected during period 1993-94. The appellants were held guilty by the Adjudicating Officer where being aggrieved these appeals have been preferred by the appellants for setting aside the impugned order. 3. I have heard elaborate arguments from Shri Vipul Kundali, Advocate on behalf of the appellants and Shri A.K. Gautam, Advocate for the respondent and gone through the record, relevant law and judicial pronouncements carefully. The exports were made under 33 GRs to M/s. Bangladesh Power Development Board (BPDB), Dhaka during the year 1993-94. BPDB is a nationalized institution of Bangladesh who invited Global Tender for supply of 11 K.V. and L.V. Poles and associated fittings for its power distribution project in Bangladesh. It is not disputed that the appellants realized 90 per cent of the total amount where 10 per cent dues were not paid by the overseas buyer. It is vehemently argued by ld. counsel that reasonable steps were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Bank that the Board on or about 23-12-1995 purported to invoke all the guarantee bonds and demanded payment of aggregate amount of US $ 7,62,420.78 and BTK 6,43,649.76. The Board decided to forfeit the said bank guarantees. However, the Board gave fake hopes about revalidation of the L/Cs and tactfully managed to have the guarantee bonds revalidated only with the idea to forfeit the amount in violation of the agreement dated 9-5-1995. 6. The suit was thereafter filed against unlawful invocation of bank guarantee along with other charges and the suit was pending. The Appeal was pending before the Hon'ble High Court. The payment was wrongfully withheld by the BPDB despite the fact that goods were supplied as per specifications. The fraudulent attitude was shown by the BPDB. As against it, the appellants have taken bona fide steps in rectifying the defective goods but could not realize the balance payment due to mala fide attitude of BPDB. The copies of the correspondence of the firm with BPDB, copies of the extracts of special conditions of export are produced on record. 7. Under section 18(2) and 18(3) of the FER Act, 1973, an exporter is under an obligation to make reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficult in interpretation. However, when prefixed with adjective reasonable , this Tribunal is required to go to ascertain what amounts to reasonable steps . 10. At this stage, I am required to ascertain the meaning conveyed by word reasonable which is the prescribed standard of legal duty of the exporter and whether steps taken by appellants achieve that standard. In Advanced Law Lexicon by P. Ramanand Aiyar (3rd Edition, Vol. 4 pages 3959 and 3968) the word reasonable has been described as follows : (i) What is 'fair' and proper under the circumstances. (ii) The expression reasonable is not susceptible of a clear and precise definition. A thing which is reasonable in one case may not be reasonable in another. Reasonable does not mean the best, it means most suitable in a given set of circumstances. (iii) There is no point on which a greater amount of decision is to be found in Courts of law and equity than as to what is reasonable. It is impossible a priori to state what is reasonable as such in all cases. You must have the particular facts of each case established before you can ascertain what is meant by reasonable under the circumstances - Lord Romilly, M.R. Labourcher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of the arguments before this Tribunal, learned counsel for the appellants could not explain the progress in the said suit. This implies that even the institution of such suit was only a pretense of an attempt to realize the sale proceeds and not a real and effective step for recovery of the outstanding amount. 13. Filing of suits in the Kolkata High Court which was against from a foreign company for stopping it from invocation of Bank Guarantee outside the jurisdiction of that Court was not an efficacious remedy that could prove the bona fides of the appellants. Even the suits filed before Kolkata High Court for recovery of the dues from the defaulting parties could not constitute a proper remedy and could not be construed as sufficient and reasonable steps taken for realizing the outstanding amounts. It is not the case of the appellants that initiation of legal proceedings in Dhaka would have entailed heavy expenses. 14. The 10 per cent export proceeds of the exports made by the appellants have not been realized by them within the stipulated period and till date. Such being the position all that remains to be examined is whether the exporter company had taken reasonable s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an hardly amount to serious efforts, much less reasonable efforts. 18. In the facts of this case, the appellants have not been able to rebut the presumption raised against them under section 18(3) of the FER Act and the facts set out above clearly show that the appellants have utterly failed to take reasonable steps to realise the export proceeds in its entirety. It is not disputed that the appellants in appeal Nos. 1317/04 and 1318/04 were the partners of the appellant-firm during the relevant period who were responsible for the day-to-day functioning of the said firm. So far as the amount of penalty against the appellant-firm is concerned, it will be appropriate to mention the ruling of the Hon'ble High Court of Kolkata in Tarak Nath Sen v. Union of India AIR 1975 Cal. 337 where it was observed by the Hon'ble Court that partnership firm is a compendium name of its partners and both cannot be held guilty for the same contravention simultaneously. In view of the observations made by Hon'ble High Court in the aforesaid ruling, I am of the view that it will be appropriate to realize the penalty amount only from the appellant-firm and to absolve its partners from any penal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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