9911796707
TMI Blog2007 (8) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... nly) against its Managing partner Shri R. Shivakumar for contravention of the provisions of section 18(2) and 18(3) of Foreign Exchange Regulation Act, 1973, for not taking reasonable steps to realize outstanding export dues to the tune of US $3,47,199 as against the total export made to the tune of US $5,60,601. Shri R. Shivakumar has also been penalized for contravention of the provisions of section 8(1) of FER Act, 1973 for having mis-utilised his domestic credit card in Italy without the permission of RBI to the tune of US $2,015.12. The appellant in appeal No. 701/2005 has deposited 50 per cent of the penalty amount in these matters pursuant to the order of the Hon'ble High Court dated 7-2-2007 where presently, the appeal is taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n imposed on the appellant on a totally different ground that the appellant though realized the foreign exchange abroad but did not repatriate this amount to India where he was not having any permission of the RBI to retain the money abroad. It is argued that the appellants cannot be penalized for a ground which is totally different from the one alleged in the SCN. Total six GRs are in question of 1989 where for 3 GRs to the tune of Rs. 32,67,000, the foreign buyer had gone bankrupt and the amount could not be realized and in case of remaining 3 GRs of 1990, the goods were sold to alternate buyer where penalty was wrongly imposed against the appellant by the Adjudicating Officer. It is also contended that the appellant firm and its partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tstanding export dues for the reasons beyond their control. The appellants had relied on paper No. 13 of the additional documents filed by them which is photo copy of a news paper clipping which the Ld. Counsel has not been able to prove how it could be read in evidence which was subsequently not pressed by the Ld. Counsel. Similarly, Ld. Counsel referred to a letter, on Page No. 5 of record which is addressed by one of the foreign buyer to the appellant where date is not mentioned. Moreover, the sender's name is also not appearing in this letter where no reliance could be placed on this letter filed by the appellants. The appellants in this case have not been able to prove reasonable efforts on their part to realize the outstanding exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 18(3) which is rebuttable. Section 18(2) provides as under : "(2) Where any export of goods. . . has been made, no person shall, except with the permission of Reserve Bank, do or refrain from doing anything, or take or refrain from taking any action, which has the effect of securing-- (A) in a case falling under sub-clause ( i) or sub-clause (ii) of clause (a) of sub-section (1),-- (a) that payment for the goods-- (i) is made otherwise than in the prescribed manner, or (ii) is delayed beyond the period prescribed under clause (a) of sub-section (1), or." Under section 18(3) of the FER Act a presumption arises where the exporter does not receive the payment for exports within the prescribed period. Under such circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriate that the appellant firm should be penalized with the whole penalty amount of Rs. 4,00,000 where the outstanding export dues are substantial to the tune of US $3,47,199 where the appellant partner should be absolved from the payment of penalty in entirety on this count. 10. So far as the charges under section 8(1) of FER Act, 1973, against the appellant Shivakumar is concerned it is found established that Shivakumar, Managing Partner of M/s. Sudharshan Exporters had otherwise acquired foreign currency of US $2,015.12 abroad in Italy, by misusing his domestic credit card, issued by Vijaya Bank, Bangalore, under the guise that the same was lost in Italy. But as undertaken by him he did not produce proof of complaint filed with Italia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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