9911796707
TMI Blog1992 (7) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... not been received so far in India by the appellant and that the appellant has failed to realise the full export proceeds of the said shipments from the foreign buyer within six months from the date of the said shipments or the time extended by the RBI in the prescribed manner and thereby contravened the provisions of section 18(2) of the Act read with the Central Government Notification No. F.1/67/EC-73 1 and 3 dated 1-1-1974 and section 18(3). 4. S.C.N. II: This show-cause notice was issued to the appellant, alleging that during the year 1972, the appellant S. Kapur Son effected shipment of goods valued at Rs. 42,533 under GRI Form Nos. DEL-A. 165537 and A-838970 and the appellant failed to realise the export proceeds from the foreign buyer within six months or the time extended by RBI and that the appellant also refrained from taking any action for securing the payment of Rs. 42,533 which the appellant had a right to receive, and thereby contravened the provisions of section 12(2) and section 10(1) of the Foreign Exchange Regulation Act, 1947. 5. Taking up S.C.N. II first, it may be stated that the Adjudicating Officer had dropped the proceedings in respect of the two shipments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reliance on AIR 1980 Mad. 176 and orders of this Board dated 13-11-1982, 28-9-1984 and 20-9-1985 in Appeal Nos. 198 of 1982, 161 of 1984 and 24, 25 and 61 of 1984, respectively. Shri T.N. Kaul also placed reliance on various documents, copies of which were filed along with the memorandum of appeal. The genuineness or the correctness of the said documents was not disputed by the counsel appearing for the respondent. 11. The counsel appearing for the respondent on the other hand, submitted that the appellant had failed to make timely efforts; that no extension of time was granted by the RBI and that merely because the appellant had approached the RBI for the purpose, the appellant cannot be said to have taken all reasonable steps. Counsel further submits that the documents submitted by the appellant in order to explain the delay relate to the belated period, i.e., the period after 1983. 12. So far as the decisions of this Board relied upon by the counsel for the appellant, mentioned above, are concerned, it may be stated that the question whether or not reasonable steps have been taken would depend on the facts and in the circumstances of each case. The ratio laid down by this Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... simply informed the RBI vide their letter dated 22-12-1978 that the said amount was not paid by the buyer because of some difficulty and the buyer would be paying the same shortly. The buyer informed the appellant's banker vide their letter dated 23-11-1979 that, as per discussion held with Shri Kapur on his visit to London, they had agreed to pay the outstanding bill in 1980 in three equal monthly instalments beginning in the month of January 1980, i.e., January, February and March. The amount was not paid even as per the above schedule. Nor did the appellant take any steps to realise the said amount during 1980. The buyer in his letter dated 26-2-1983 informed as follows : You are aware of the problems faced by us in business since the year 1980 and the matter has been personally explained to you on several occasions. We have been through financial difficulties and suffered heavy losses during the period 1980-82. . . . (b) It is amply clear from the buyer's above letter that as the buyer was not having any financial difficulty prior to 1980, there were no convincing reasons as to why the amount could not be recovered during the period prior to 1980. It is also not clear t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 valued at Rs. 5,31,020. The appellant had exported ladies garments worth Rs. 5,31,020 to Tuti's Moden, West Germany vide the above GRI forms in January 1981. The appellant has failed to realise the aforesaid export proceeds. The Adjudicating Officer has found that the appellant has not taken reasonable steps to realise the said amount and thereby contravened the provisions of section 18(2). The reasons given by the Adjudicating Officer for arriving at the above conclusion are contained at pages 4 and 5 of the adjudication order. We endorse the above finding of the Adjudicating Officer for the following reasons : (i) The prescribed period of six months within which the appellant was required to realise the export proceeds expired in June 1981. The appellant did not take any steps during this period to realise the export proceeds. (ii) The appellant did not approach the RBI for extension of time for realisation of the said amount before the expiration of the prescribed period or immediately after the expiration thereof. The appellant requested their banker to obtain extension of time for the purpose from RBI only on 12-11-1981, i.e., after nearly five months of the expiration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis and as such, it is not clear as to why the appellant failed to get the payment of the said amount when the goods were exported on outright sale basis. (x) Shri Anand Virmani's letter indicates that the goods were stored at the house of the foreign buyer, i.e., after closing the business, the foreign buyer shifted the goods to his house. It is not clear as to why the legal action was not initiated at that point of time seeking the Court's order for attaching the goods. 17. It is true that the 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 Reserve Bank is sought for as contemplated by section 12(2), the Reserve Bank 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 under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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