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TMI Blog1996 (2) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of section 68(1) and (2) of the Act. The appellants have sought hearing of the case at Calcutta as it would be beyond their financial means to prosecute their appeal at New Delhi. After going through the applications for dispensing with the requirement of pre-deposit as also the grounds of appeal, I am prima facie of the view that there is no adequate justification for imposing the penalty on the second appellant and that there is justification for reducing the penalty imposed on the first appellant. As it is not feasible to hold the camp of the Board at Calcutta in the near future and having regard to the prima facie view as stated above and the fact that the amount of penalty is small, I am inclined to waive the requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted, any legal action would not have been prudent. Shri Gadoo submitted that if the position was as submitted by the appellants, they ought to have approached the RBI which would have given the RBI an opportunity to give such directions as they considered expedient for the purpose of securing the receipt of foreign exchange. Shri Gadoo further submitted that the appellants have advanced the arguments of commercial unviability and expediency. These factors, unlike the provisions of section 18(3) of the Act, do not negative the obligation of a person to report the matter to the RBI. He submitted that a contrary view would render the provisions of sub-section (2) of section 16 nugatory. Shri Gadoo conceded that the reason given by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e foreign principal did not provide for payment of commission in all eventualities. It cannot be disputed that the amount of commission as alleged was due. Even the foreign principals did not dispute this position. They refused to remit the amount of commission on the plea that they have incurred losses due to the rise in prices. But at the same time, they had taken a business decision to export the goods at the agreed price, despite the delay in the opening of L/C. The appellant has not brought out any evidence to show that the export of goods by the foreign principal on the agreed price in spite of increase in price was subject to the waiver of the commission amount. In view thereof, it cannot be said that the appellant did not have a rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gards the quantum of penalty, it is to be borne in mind that the finding of contravention for non-receipt of the alleged amount of contravention relating to invoice Nos. 94 JS 164 and 94 JS 174 cannot be sustained and in respect of the other two invoices for which the appellant has been held guilty of contravention there are mitigating circumstances. In the circumstances, in my opinion, the amount of penalty of Rs. 15,000 on the first appellant deserves to be reduced to Rs. 7,500. As regards the penalty of Rs. 10,000 on the second appellant, the learned Adjudicating Officer has not given any justification for invoking the provisions of section 68(1) and (2). There is no evidence to indicate any wilful negligence on the part of the second ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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