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TMI Blog2008 (7) TMI 1108X X X X Extracts X X X X X X X X Extracts X X X X ..... f these appeals. The said order of the Hon'ble High Court was received by this Tribunal on 12-12-2007. These matters were posted for hearing on 1-2-2008, 24-4-2008 and 15-7-2008 but appellants failed to appear or being represented. Shri A.C. Singh, DLA filed the service report dated 1-4-2008 and 26-6-2008 along with copies of Panchnama dated 31-3-2008 and 26-6-2008 respectively showing service on the appellants by affixation on 31-3-2008 and 26-6-2008. Despite, the appellants failed to appear or being represented. In such a situation, these appeals are taken up for fresh consideration as directed by the Hon'ble High Court. 4. Perused the appeal papers of the relevant appeals and heard Shri A.C. Singh, DLA for the respondent. The impugned adjudication order in these appeals is emanated from the Show Cause Notice dated 8-5-1998 issued to the appellants asking them to explain why the adjudication proceedings should not be held against them for contravention of Section 18(2) and 18(3) r/w Section 68(1) of FER Act 1973 for failure to realize and repatriate outstanding export proceeds. 5. It is contended in the appeal memos that the appellants had pursued the matter by writing va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f clause (a) of sub-section (1), (a) that payment for the goods - (iii) is made otherwise than in the prescribed manner, or (iv) is delayed beyond the period prescribed, under clause (a) of sub-section (1), or (b) that the proceeds of sale of the goods exported do not represent the full export value of the goods subject to such deductions, if any, as maybe allowed by Reserve Bank; and (B) in a case falling under sub-clause (ii) of clause (a) of sub-section (1) also that the sale of goods is delayed to an extent which is unreasonable having regard to the ordinary course of trade : Provided that no proceedings in respect of any contravention of the provisions of this sub-section shall be instituted unless the prescribed period has expired and payment for the goods representing the full export value has not been made in the prescribed manner within the prescribed period. (3) Where in relation lo 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 accordingly be presumed to have contravened the provisions of sub-section (2) 8. It is amply clear in the provisions of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action thereafter to pursue the said civil suit. Mere merely filing a suit long after expiry of the prescribed period for recovery of export proceeds as per the declaration given under the Act, cannot be stated to be sufficient to displace the adverse presumption under Section 18(3) of the Act. It is not controverted that the appellants did not approach the High Commission or other authorities. The appellants also did not approach RBI for extension of time or write off. 10. Explaining the steps for realization of the export proceeds outstanding for the goods exported to M/s Mode House, Malaysia, the appellant company relied on the only correspondence dated 18-2-1998 stated to have been addressed to the overseas buyer. In the instant case, goods were exported from December 1996 to April 1997. This lone correspondence (at page-93) made after expiry of the prescribed period cannot assist the appellants to displace its burden under Section 18(3) of the Act when no further steps have been brought on record. 11. Similarly, the efforts of the appellants to realise the export proceeds from overseas buyer i.e. M/s Bonkon International is also not sufficient. The copies of correspondence bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss. In S.M.S. Pharmaceuticals case (supra), the Hon'ble Court held that the requisite averment must appear on the face of the complaint itself. 16. In Everest Advertising Pvt. Ltd. v. State, Govt. of NCT of Delhi 2005 SCALE 479, the Hon'ble Court relying on the decision of S.M.S. Pharmaceuticals case (supra) and Saroj Kumar Poddar v. State (NCT of Delhi) 2007 (2) SCALE 36 on the question of vicarious liability of the company official held that : The averments must state that the person who is vicariously liable for commission of the offence of the Company both was in charge of and was responsible for the conduct of the business of the Company. Requirements laid down therein must be read conjointly and not disjunctively When a legal fiction is raised, the ingredients therefore must be satisfied. 17. In the instant case, SCNs issued to the individual appellants contains clauses which spell out that the appellants were charged for vicarious liability. It is also not contradicted that during the relevant period, the appellants being Managing Director and Chairman, were in charge of and were responsible to the appellant company for conducting of its business and affairs. Despite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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