9911796707
TMI Blog1997 (11) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... Jasai Exports (P.) Ltd., has failed to realise the proceeds of exports made under the cover of 23 GRIs as listed in Annexure A to the show-cause notice dated 15-10-1996. 2. Nobody appeared on behalf of the appellant in spite of the notice. On earlier occasions also the notice of hearing was received undelivered with the remark that the addressee out of India for unknown period . The notice of today s hearing has also been received undelivered with the remark of the postman that the addressee is not available inspite of repeated visits. It is seen that the postman had gone to the addressee on six occasions to deliver the notice. The address on which the notices were sent is the one given by the appellant himself in his memorandum of appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining 7 GRIs it has been stated that they were samples of small value and as such the buyer has not made the payment. 5. The appellant has assailed the order on several grounds, the foremost being that the adjudication proceedings were not held in accordance with rule 3 of the Adjudication Proceedings and Appeal Rules, 1974 and that he was not given due opportunity to present his case. The appellant has stated that Department s communication calling upon the appellant to inspect the records on 7-2-1997 was received late and when the appellant went for inspection of the records on 10-2-1997, he was called upon to appear in the adjudication proceedings on that date itself and argue his case. When we asked Dr. Shamsuddin as to whether any noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure being adopted but the Deputy Director insisted on proceeding with the adjudicating process without giving any time to file the reply to the SCN or to give an opportunity to file any evidence in support of the case. 6. Without going into the question as to whether the personal hearing on 10-2-1997 was held on the request of the appellant or in spite of his protest, we are of the opinion that the procedure adopted by the authority below was not in accordance with the provisions of Adjudication Proceedings Appeal Rules, 1974. Since the inspection of documents was completed only on 10-2-1997, the appellant could file a proper reply to the show-cause notice only thereafter. As contemplated in rule 3(3), the question of holding adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds the exports covered by GRIs where the goods were not received by foreign buyer for whatever reasons, the appellant cannot be held guilty of contravention of section 18(2). The question of payment for those goods or realisation by the exporter of the proceeds of those goods cannot arise unless the goods are received by foreign buyer under the transaction of sale by way of exports. In view thereof, unless the receipt of goods by the foreign buyer is proved by the Department, the adjudication proceedings should not be held in respect of those GRIs. The evidence of the receipt or non-receipt of the goods exported is always with the bank and the bank can be directed to furnish all the evidence regarding every export in question before the Inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty of contravention. It is further to be noted that even where the company has been held guilty of contravention it is necessary to give reasons, in justification of imposing of any penalty on the directors who were at the relevant time in charge of and responsible for the conduct of the company s business. The mere fact that the company has been held guilty of contravention would not necessarily lead to imposition of any penalty on the managing director or the concerned director. While considering this issue the enquiry whether the managing director while acting in the course of the company s business has committed the contravention for personal gain, either directly or through the company, would be a relevant factor. 9. In view of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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