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TMI Blog2008 (7) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeds in contravention of Section 18(2) and 18(3) of FER Act, 1973. 3. By an order dated 15-12-2005, after hearing argument from Shri Atishi Dipankar, Ld. Counsel appearing for the appellants this Tribunal directed the appellant to make pre deposit of 1/3 1 of the penalty amount i.e. Rs. 25,000 within 60 days, It is stated that the appellant has made the pre deposit. Shri Atishi Dipankar, Advocate appears for the appellant when Shri A.C. Singh, D1.A represent the respondent. 4. Shri Atishi Dipankar, Ld. Advocate appearing for the appellant filed additional documents which have been taken on record. It has been contended by the appellants that the appellants are partners of M/s S.K. Works (hereinafter referred to as the noticee firm for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire outstanding export proceeds. According to Shri A.C. Singh, the appellant made 7 shipments to the foreign buyer within a span of three weeks during March-April 1992. Despite failed to realize any amount, they continued to export goods worth substantial amount in July, 1992 to 1994, They have not brought any material on record to show what prompted them to continue the exports of goods worth substantial amount. It is further contended that the appellant has not taken any steps for realisation of the outstanding export proceeds within the prescribed period. Thus, the contravention of Section 18(2) and 18(3) is clearly established. Lastly, the submitted for dismissal of this appeal for having no merit. 6. In view of the rival pleas, it m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid, 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. From the bare perusal of the above, it is clear that the provision of Section 18(2) provides that export of goods which fall under the notification issued pursuant to Section 18(1)(a), no person without the permission of RBI, do or refrain from doing any act whereby receipt of price is delayed or hampered. Section 18(3) further provides that it will be presumed unless the contrary is prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther, the argument of the appellant is that mere breach of a provision of law will not be sufficient to impose penalty unless it is shown that the contravention is deliberately made in defiance of law or in conscious disregard of obligation, in support of this, various case laws have been cited. 11. It is well settled that FER Act, 1975 is a special Act creating regulatory mechanism for the conservation of the foreign exchange resources and proper utilization thereof in the interest of the economic development of the country. As the statute deals with regulatory offences the construction of the enactment demands according to its purpose so far as wording may reasonably permit. The resolution of ambiguity, if any, shall be in favour of impl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature is composed of reasonable people seeking lo achieve reasonable goals in a reasonable manner; and second, me interpreter should accept the non-rebuttable presumption that members Page 0184 of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably.' (Aharon Barak, Purposive Interpretation in Law (2007) at pg. 87, 52. In Bharat Petroleum Corporation Ltd. v. Maddula Ratnavalli (JT 2007 (6) SC 264), this Court held: 'The Parliament moreover is presumed to have enacted a reasonable statute (see Brcyer, Stephen (2005): Active Libe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give teeth to the SEBI to secure strict compliance of the Act and the Regulations. 14. In the light of the above discussion the various case laws cited on behalf of the appellants are not applicable in the legal and factual matrix. In the instant case, charge against the appellant failure of realization of the outstanding export proceeds within the prescribed period without the permission of RBI. Even from the written submissions filed on behalf of the appellant r/w Annexure-3, proceeds under 4 GRs are still outstanding. The aggregate value under these GRs exceeds over Rs. 8.5 lakhs. In absence of any material showing the steps taken by the appellant, the adverse rebuttable presumption under Section 18(3) cannot be said to have been displa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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