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TMI Blog2001 (8) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 51 of the Foreign Exchange Regulation Act, 1973, should not be held against them for the contravention of section 18(2) read with section 18(3). In their written reply, the appellants attributed the non-realisation of export proceeds to the Gulf war between Iran and Iraq. The appellants further submitted that after the war, the overseas buyers left Iran and they could not be located for realising the pending export proceeds. The appellants claimed that the non-realisation of the export proceeds was for the reasons which were beyond their control and therefore requested for a sympathetic view. The adjudicating authority, inter alia observed vide his order dated 15-10-1999 that no reasonable step was taken by the appellants for realisation of the export proceeds of the shipments made in the years 1986-89. It was further observed that there was no evidence on record that the appellant firm ever approached RBI for extension of time or RBI granted the appellants any such extension for realising export proceeds. The learned adjudicating authority further observed that the appellants failed to produce any documentary evidence in support of its contention as to the steps they had tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gurbachan Singh decided to convert his proprietary business into partnership with his son and accordingly executed a partnership deed on 12-1-1984. Since then Shri Raminder Bir Singh had started looking after the business on his own and at the time of the shipments in question, he was de facto in charge of day-to-day business of the firm and responsible for the conduct of its affairs. Shri Sarvesh Chandra further submitted that the appellants have taken all the reasonable steps for realisation of the outstanding export proceeds. Shri Sarvesh Chandra specifically drawn our attention to the fact that appellant s firm was engaged in the manufacture of auto parts, mostly headlights which was specially designed for foreign automobiles and had no domestic consumption. Shri Sarvesh Chadra narrated the actions that have been taken by the appellants for the realisation of the export proceeds which, inter alia, included several telephonic contracts, protracted correspondence and even personal visits abroad. Shri Sarvesh Chandra stated that the firm has been exporting since long and its export record is consistently very good and furnished particulars of the realisation of the export proceeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) is to ensure that the exporters do not retain abroad the proceeds of goods exported by them thereby preventing the augmentation of foreign exchange reserves of the country. This is clear from the use of the expressions do or refrain from doing , take or refrain from taking and, which has the effect of securing , which contemplate a deliberate act/omission. The effect of sub-section (3) is only to shift the burden on the exporter. Shri Sarvesh Chandra further submitted that with regard to legislative scheme of section 18(2), where the facts and circumstances of the case tend to negative any inference of the retention of the proceeds of exports outside the country, the exporter should not be penalised for non-realisation of proceeds of exports made by him. Shri Sarvesh Chandra submitted that the appellants had taken all the steps that could be possible in the limited scope of prevailing circumstances and therefore prayed that these appeals be allowed and impugned order be accordingly set aside. 4. Dr. Shamsuddin, on behalf of the respondents controverted the submissions made by the appellant s counsel. The expression reasonable steps envisaged in the Act enjoins upon the exporter t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at has already incurred before the partnership is dissolved until that liability is satisfied in the manner specified in the Act. We find support for this from an earlier order of this Tribunal in Om Jewels Corpn. v. Additional Director Enforcement Directorate, dated 6-7-2001 (Appeal Nos. 676, 677, 678 and 679 of 1990) where in it was observed that section 25 of the Partnership Act provides that every partner is liable, jointly with all the other partners and also severely, for all acts of the firm done while he is a partner. A partner who retires from the firm does not cease to be liable for partnership debts or obligations incurred before his retirement. He may cease to be liable for such debts and obligations under the following circumstances, namely, by payment or performance, by release and discharge; by substitution of debtors and securities; by arrangements between the creditors and the retiring partners and by the law of limitation ..... Similarly, whereby the wrongful act or omission of a partner acting in the ordinary course of business of a firm, or with the authority of his partners, loss or injury is caused to any third party, or any penalty is incurred, the firm is li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder on the appellant firm for its failure to take all reasonable steps for realisation of the outstanding export proceeds, the undisputed facts are that these exports were made in 1986-89 and these are still outstanding as on date. The appellant firm sought time to file chronological lists of steps taken in respect of each of 14 GRIs but failed to do so. They have made general submissions on the basis of Gulf war and disappearance of the buyer after the war was over. That by itself does not explain the action which the appellants were expected to take since the shipments of the consignments in 1986-89. Similarly, the appellants plea that they were in constant touch with overseas buyers on phone and through correspondence does not substantiate the claim that they have taken all the reasonable steps for realisation of export proceeds. The appellants furnished copies of two applications made to RBI for extension of time for realisation of proceeds in respect of two GRIs mentioned therein. Admittedly, the appellant has not duly approached the RBI for extension of all the GRIs in question nor the appellant could explain as to why they have not approached the authorised dealer/RBI for w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sympathetic view in the matter appears to have escaped the consideration of the learned adjudicating authority as there is no reference to this aspect of the matter. It will be relevant to note in this regard the order of the Customs Excise and Gold Control Appellate Tribunal dated 20-5-1997 in Appeal No. 394-396/95 whereby a penalty of Rs. 25 lakhs on appellant firm for failure to meet export s obligation in relation to duty free import was reduced to Rs. 2 lakhs for the reason of the fire in the appellant factory. In the said order, the penalty of Rs. 15 lakhs on the two partners was also reduced to one lakh each. Though this case does not squarely apply to the present one on merits, nonetheless this lends support to the appellant s claim for a sympathetic consideration and a lenient view in the matter. We have given careful consideration to all the relevant facts and circumstances of the case and the material on record and we are of the considered view that the appellant firm deserves a sympathetic consideration and the ends of justice would be adequately met if the penalty of Rs. 10 lakhs on the firm is reduced to Rs. 1 lakh. Accordingly, the impugned order in so far as it re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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