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2019 (3) TMI 1518 - AT - FEMAOffence u/s 3(a) of FEMA - domestic supply of goods in India against amount received in foreign exchange from the overseas buyer - no general or special permission of Reserve Bank dealt in receipt of foreign exchange - Proof of compilation of conditions prescribed under Regulation 12 - HELD THAT:- It is the obligation of the Authorised Dealer to ensure compliance of all conditions before acceptance of documents for negotiations. It is a matter of fact that Letter of credit opened by the overseas buyer was negotiated by the Authorised Dealer against Shipping Bill No. 1862349 dated 30.07.2002, therefore presumption must be that all conditions prescribed under Regulation 12 has been duly complied including the condition with respect to SDF. In absence of any evidence, it cannot be assumed that Authorised Dealer has accepted the shipping documents without SDF. And even no action was taken against the Authorised Dealer if there was no compliance of about SDF. Once the said stand is taken, the onus is on the on the Directorate that Padmaja was allowed export without filing of SDF, and also documents were negotiated by the Authorised Dealer without SDF. In the present case, export proceeds to the full extent of value of shipping bill were realised and repatriated and even penalty amount of ₹ 23 Lakhs has been deposited on behalf of Padmaja in case of any breach. It is a settled principle of law that the procedures have been prescribed to facilitate verification of substantive requirement, as long as a fundamental requirement is met other procedural deviation can be condoned. As far as the Appellant No. 2 is concerned, Appellant No. 2 guilty although there is no evidence against him. As the burden of proof to show contravention of a particular statutory provision is on the Respondent and not the Appellants. In the impugned order, the understanding between the two set of parties and evidence produced have not been dealt properly. On August 2018, the Hon‟ble Tribunal desired to know as to whether Shri Gangadharan Manari, proprietor of M/s Padamja Impex has deposited the penalty amount of ₹ 23,00,000 (Rupees Twenty Three Lakhs Only) or not. Appeals filed by the appellants are allowed. The impugned order against the appellants is set-aside.
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