9911796707
TMI Blog2001 (7) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... application seeking dispensation of pre-deposit of penalty as required under the law on the ground of their financial inability to deposit the penalty amount. The particulars based on which such dispensation was sought where as on 4-9-1986. Accordingly, when dispensation application was taken up for consideration on 25-6-2001, the appellants were directed to furnish the latest particulars relating their financial position as on date. The respondents were also directed to furnish the financial status of the appellants on or next date of hearing. The appellants have sent telegram dated 22-6-2001 stating that he was unable to travel on account of his by-pass surgery and he was unable to contract his counsel and requested for another date. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingapore to settle the matter but he found that the documents had not reached Singapore bank. The Singapore bankers refused to deliver the documents without security or without the permission of the RBI. Thereupon the appellant approached the RBI which in turn, advised the bankers. Both Canara Bank and Hindustan Commercial Bank have called back the documents from Singapore but did not return the same to the appellant. In these circumstances the goods which were lying in the docks at Singapore were taken delivery by the Steamer Agents and they issued a legal notice through their Solicitors claiming US $5050 towards various charges incurred by them. The goods in question were perishable and their original strength would stand not more than 90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating Authority did not accede to the request of the appellant and proceeded to hold adjudication proceedings against the appellant and found that by the appellant s own admission, the buyers did not give trust or undertaking when the documents were presented to them. In the opinion of the Adjudicating Authority, the appellants should have taken up immediate steps to re-import the goods when the buyer refused to accept the documents. Instead, the appellants tried to persuade the banks to deliver the goods free of any undertaking from the buyers which the banks did not agree in the absence of the necessary permission of the RBI. Accordingly, the Adjudicating Authority found the appellants guilty and imposed a penalty of Rs. 50,000 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seems to have based on a misunderstanding of law. Reference in this regard may be made to sub-section (3) of section 18 where under a presumption is required to be a statutorily drawn in cases in which the prescribed period of realisation of export proceeds has expired and the payment for the exported goods has not been made, to the effect that the seller/exporter has not taken all reasonable steps to receive or recover payment for the goods, unless the contrary is proved by the seller/exporter. In view of this, the appellants are not right when they say that the imposition of penalty on them cannot be sustained in the absence of a finding from the learned Adjudicating Authority to the effect that they have failed to take all reasonable ste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement of getting permission from the RBI before doing or refraining from doing anything as a result of which the export sale proceeds could not be repatriated is not a mere idle formality. That requirement has been introduced in the section obviously with a view to have a check and verification of the claim made by the person seeking the permission. Once a permission of the RBI is sought for as contemplated by section 12(2) of the 1947 Act, corresponding to section 18(2) of the 1973 Act, the RBI will take up the follow up measures to find out whether doing or refraining from doing any act by the person who seeks permission is genuine and bona fide or whether it is intended only to get over the obligations he had undertaken by giving t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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