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TMI Blog2005 (12) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;) and a penalty of Rs. 2,00,000 each on the appellants in appeal No. 662/2004 and appeal No. 663/2004 for contravention of sections 18(2) and 18(3) read with section 68(1) of FERA, 1973 (the said 'Act') for the reason of their failure to repatriate the export proceeds to the tune of Rs. 68,09,253. 3. A show cause notice No. T-4/26-C/97 (SCN), dated 8-12-1997 issued to the appellant firm and to its partners, namely appellant in appeal Nos. 662/04 and 663/04 to show cause why the adjudication proceeding should not be held against them for their failure to realise the balance export proceeds to the tune of Rs. 1,15,54,861 for the export made under 26 GRIs during 1989 to 1996. The appellants submitted their reply controverting the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Firstly it is contended by Shri Ravi Mehrotra, advocate for the appellants that appellant firm has made all reasonable steps to realise the outstanding export proceeds from their foreign buyer but have not succeeded. The appellants made several correspondence with their foreign buyers but in vain. They contacted the Indian Embassy in USA to trace foreign buyers to realise the outstanding amount. The Embassy also could not render any help in this regard. Several personal visits made by the appellants could not improve the situation. In some cases the concerned overseas buyers have gone bankrupt. Shri Ravi Mehrotra further submitted that appellants have approached the RBI through their bankers/authorised dealers Punjab National Bank to writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... encing any sincere and reasonable efforts taken towards realisations of the export proceeds under any of the above mentioned 12 GRIs. Therefore, the impugned order cannot be faulted with. 7. I have carefully considered the rival pleas and the documents brought on record. It is well-settled that non-realisations of the export proceeds simplicitor is not punishable under the Act. What is punishable under the Act is the failure of exporter to take all reasonable steps for realisations of export proceeds. What may be regarded as reasonable step in one case may not be so in another. Reasonableness is to be decided on the touch stone of business consideration and commercial prudence. It cannot, therefore, be said that not taking of any particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... render non-realisations of export proceeds punishable thereunder. Instead the essential ingredient of said sub-section is taking or refraining from taking any action which has the effect of securing the result which is envisaged either in clause (a) or clause (b) of the said sub-section. The onus to prove this ingredient always remains on the respondent and cannot be shifted to the exporter. 8. The presumption under section 18(3) are rebuttable in nature. What evidence is required to rebut this presumption is question of fact and law. In the present case non-realisations of export proceeds in regard to GRI at Sl. Nos. 1, 2, 3, 4, 5 and 12 cannot be termed as failure on the part of the appellants. As regard GRI at Sl. Nos. 6 to 11 they have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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