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TMI Blog2008 (7) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... d US dollars 20,000 respectively for import of the goods failed to make such import and file proof thereof. 3. All these appeals are filed along with separate application for dispensation of pre-deposit of penalty under Section 52(2) FER Act, 1973, pleading undue hardship. While disposing off the application for dispensation of pre-deposit in Appeal Nos. 475/2004 and 543/2004 this Tribunal allowed by order dated 31.1.2005 dispensation of 90% of the penalty amount to both these appellants but directed them to deposit 10% each of the penalty within 60 days from that date. The appellant in Appeal No. 475/2004 informed this Tribunal by an application dated 31.3.2008 that 10% penalty is pre-deposited in compliance of this Tribunal's order dated 31.1.2005. However, such compliance by the appellant company in Appeal No. 543/2004 is not available on record and is not made. Nor any application for review or modification is filed by the appellant company against pre-deposit Order dated 31.1.2005. 4. Firstly, in Appeal No. 473/2003 488/2003 (having been filed by the same company and its Managing Director named Ravi Mittal but the peculiarity of filing is stated to have been made because o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals, an amount of US dollars 1,74,000 is taken but clear proof of import of the goods is not available. Despite this position, this Tribunal has been lenient enough to grant dispensation of 90% penalty with a direction to deposit 10% penalty. The appellant in Appeal No. 543/2004 has failed to comply with the pre-deposit order dated 31.1.2005. According to Dr. Shamsuddin, DLA, this appeal as well as another Appeal No. 488/2003, by same company against same adjudication order passed on the basis of same Show Cause Notice, are required to be dismissed for non-compliance of pre-deposit order in accordance with the provisions of Section 52(2) FER Act, 1973. 7. We have heard Shri P.K. Mittal, Advocate, in Appeal Nos. 473/2003 and 488/2003 and Shri A. Mukherjee, Advocate, in Appeal Nos. 475/2004 and 543/2004. Dr. Shamsuddin, DLA, advanced his arguments on behalf of Enforcement Directorate. The two Counsels in these appeals have filed their respective written submissions which are taken on record. 8. On factual position of limitation, it is required to be said that Appeal No. 488/2003 is filed by appellant company on 7.11.2003 against the impugned order which is stated to have been recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, and 22nd April, 2004. 11. The provisions of Section 8(3) and Section 8(4) are brought out below whose contravention is alleged. 8. Restrictions on dealing in foreign exchange. - (1) Except with the previous permission of the Reserve Bank, no person other than an authorized dealer shall........................ Provided that nothing in this sub-section shall apply to................... Explanation. - For the purposes of this sub-section, a person, who deposits foreign exchange................... (2) Except with the previous general or special permission of the Reserve Bank, no person, .................. (3) Where any foreign exchange is acquired by any person, other than an authorized dealer or a money-changer, for any particular purpose, or where any person has been permitted conditionally to acquire foreign exchange, the said person shall not use the foreign exchange so acquired otherwise than for that purpose or, as the case may be, fail to comply with any condition to which the permission granted to him is subject, and where any foreign exchange so acquired cannot be so used or the conditions cannot be complied with the said person shall, within a period of thirty days from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of of actual importing the goods lies on the appellant. Moreover, Para 7A-20 Chapter 7, Exchange Control Manual issued by RBI, as a supplementary provision, has clearly brought out the burden as well as the easy mode or method by which proof of import can be lead by a person who has taken remittance of foreign exchange for import of goods. Looking towards these clear provisions, it is totally difficult to accept the proposition put forward by Ld. two Counsels that proof of import of the goods is separate than importing of the goods. Both these two acts are connected with each other having a close nexus. However, it is another thing that import of the goods can be proved by different modes available under law. But the burden of proof squarely lies on the person who has taken remittance of the foreign exchange for import of the goods. 14. It is also contended on behalf of the appellants that RBI by letter dated 13.4.2005 allowed waiver of the filing of proof against remittance of foreign exchange of Rs. 20,000/-. Firstly, this letter can hardly help the appellants because letter clearly exempts any action taken by Enforcement Directorate. Secondly, it is also clear from the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit. 17. As the language of Second Proviso to Section 52(2) is plain and unambiguous, this Tribunal has no authority to interpret it in a different manner only because of harsh consequences arises therefrom. The statute cannot be recasted or rewritten by Tribunal on the face of the clear texture of Second Proviso. In this regard, reference can be again made to the Apex Court judgment in Nasiruddin v. Sita Ram Agarwal (2003) 2 SCC 577. Also, statutory law cannot be given different meaning only because of harsh consequences as said by a Latin saying that law is binding and harsh because it is law. While applying law prescribed by legislature no sympathy can come into play. 18. The Appeal Nos. 475/2004 Appeal No. 543/2004 are filed after expiry of more than 90 days from the date of receipt of the impugned order by the appellant company as well as the appellant Managing Director on whose business address the impugned order is served on 18.9.2003 as stated in Para 7 above. As per First Provision of Section 52(2) FER Act, 1973, the appeal is required to be filed within 45 days but condonation is permissible for next 45 days on showing sufficient cause. But no appeal can be filed after 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (2) Section 29 Limitation Act that the provisions of Limitation Act shall stand excluded in Act of 1996 to the extend area which is covered by the Act of 1996. In the present case under Section 34 by virtue of sub-section (3) only the application for filing and setting aside the award a period has been prescribed as 3 months and delay can be condoned to the extent of 30 days. To this extent the applicability of Section 5 of Limitation Act will stand excluded but there is no provision in the Act of 1996 which excludes operation of Section 14 of the Limitation Act. These two Acts can be read harmoniously without doing violation to the words used therein, then there is no prohibition in doing so. 22. Though contentions of absence of hearing of the appellants is faintly made at the time of passing of the impugned order, but it is quite clear from the contents thereof that opportunity was given to the appellants who failed to represent themselves but remained satisfied merely by filing one or two letters. The adjudicating officer cannot compel the appellants to be present for hearing but can only provide an opportunity which has been clearly given to them. 23. Therefore, these al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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