1995 (8) TMI 352 - AT - FEMA

Summary

Issues:
- Imposition of penalty for non-realization of export proceeds
- Dispensation application for waiver of pre-deposit
- Justification for reduction of penalty
- Consideration of circumstances for reducing penalty amount

Analysis:
The judgment by the Appellate Tribunal of the Foreign Exchange Regulation Appellate Board pertains to an appeal against an adjudication order imposing a penalty on the appellant for non-realization of export proceeds, contravening the provisions of the Foreign Exchange Regulation Act, 1973. The appellant sought a dispensation application for waiving the pre-deposit of the penalty, citing heavy losses and financial constraints. The appellant's counsel argued for a reduction in the penalty amount, emphasizing the circumstances leading to non-realization of export proceeds. The respondent did not object to waiving the pre-deposit, leading the Tribunal to proceed with the appeal on merits.

Upon thorough examination of the impugned order, the Tribunal acknowledged the circumstances surrounding the exports to Singapore and Dubai, where the goods were diverted due to exclusive distribution rights, resulting in non-payment by the alternative buyer in Dubai. However, regarding exports to Canada, the Tribunal found insufficient evidence of effective steps taken for realization of export proceeds, upholding the contravention of the Act in this regard. The appellant's argument of no loss of foreign exchange and absence of evidence of retaining unrealized foreign exchange outside the country was considered valid by the Tribunal.

The Tribunal concluded that there was justification for reducing the penalty amount, taking into account the appellant's status as the sole proprietor of the business and the overall circumstances of the case. Consequently, the penalty was reduced to Rs. 60,000 from the initial amount imposed. The appeal was partly allowed, modifying the impugned order to reflect the reduced penalty amount. The appellant was granted thirty days to pay the revised penalty, failing which the respondents were authorized to recover the penalty in accordance with the law.