9911796707
TMI Blog1995 (10) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... nts for the reason that they were two surviving adult partners of the firm at the relevant time. 2. The appellants have complied with this Board's directions contained in its order of 25-11-1995 by submitting, under their letter dated 1-5-1995, the documents in support of their financial position. After considering these documents, I am of the opinion that it will cause undue hardship to the appellants if they were required to pre-deposit the amount of penalty. In taking this view, I have also considered the grounds taken in the memorandum of appeal, the most important of which is that the adjudication order has been passed without considering the facts and evidence on record. On a bare perusal of the adjudication order it is clear that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rehoused by the appellants' bankers who have obtained the Court orders for disposal of those goods to realise their dues. The question of realisation of proceeds of exports in respect of those GRIs does not arise as the provisions of section 18(2) of the Act can be attracted only when the goods are received by the foreign buyer. This is clear from the provisions of section 18(2) where the expressions used are "payment for the goods" in clause (A)(a ) and "proceeds of sale of the goods" in clause (A)( b). The learned adjudicating authority, therefore, ought to have considered the question of non-realisation of proceeds of exports covered by GRIs Nos. 609780 and 666047 only. The findings of the learned adjudicating authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich had already been taken delivery of by him. 5. I have carefully gone through the findings of the learned adjudicating authority. The adverse conclusions drawn therein are not sustainable. The appellant has dealt with these observations in his memorandum of appeal and has brought out as to how these observations are contrary to facts and evidence on record. I find force in the submissions made in the memorandum of appeal. The appellants were served with the notice to show cause as to why action under section 68(1) of the Act could not be taken against them. However, the learned adjudicating authority has not imposed any penalty on the appellants by invoking the provisions of section 68(1). The penalty has been imposed on the firm, Verma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods covered by 4 GRIs and realisation of proceeds thereof by the bank in pound sterling were already on record and have been referred to in the impugned order and yet the learned Adjudicating Officer has observed that "the true facts have not been placed before the Reserve Bank of India". It is quite apparent that the learned Adjudicating Officer had allowed himself to be prejudiced by such conclusions. There is no justification for the doubt entertained by the learned Adjudicating Officer as to whether the goods covered by 5 GRIs which were initially sent to Hong Kong were diverted to London as the evidence of the auction of the goods and realisation of auction proceeds in pound sterling was on his record. He also erred by assum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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