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TMI Blog2010 (9) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... ladesh. The consignment was of cotton yarn dyed cloth which was to be dispatched to M/s. Azim Garments Ltd. ('AGL') atDhaka. The consignment was booked for carriage by M/s. Transport Corporation of India Ltd. ('TCIL'). It is stated that TCIL undertook, under the contract of carriage, to deliver the goods to AGL under the order of Islami BankBangladesh,Dhaka. As regards the condition of delivery, it was specifically notified by the carrier TCIL that the consignment covered by the lorry receipt form shall be stored at the destination under the control of TCIL and shall be delivered by the order of the consignee bank, whose name was mentioned in the lorry receipt. The relevant documents in regard to the goods sent to AGL through TCIL were negotiated by the Petitioner No. 1 through the American Express Bank,New Delhi. 3. It is stated that for a long time thereafter Petitioner No. 1 did not receive any payment or receive any advice about the retirement of the documents by the consignee. Petitioner No. 1 accordingly made enquiries from TCL and the banks but could not trace the whereabouts of the goods. Consequently Petitioner No. 1 requested the bank to return the documents so that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery of the value of the goods together with interest and costs. 7. For several years thereafter no action was taken by the DoE for any alleged contravention by the Petitioners of Section 18(2) of the FERA 1973. In 1999, the Foreign Exchange Management Act, 1999 ('FEMA') was enacted. Section 49(3) FEMA gave the DoE a sunset period up to31st May 2002for starting adjudication proceedings under the FERA. On28th February 2002a Memorandum was issued by the Deputy Director, DoE asking the Petitioners to show cause why proceedings should not be initiated against the Petitioners for contravention of Section 18(2) FERA. The Petitioners replied to the above memorandum pointing out that reasonable steps had been taken for recovery of the amount for the consignment which had been exported to Binapole inBangladeshand that the non-receipt of the export proceeds was for reasons beyond the control of the Petitioners. Reference was also made to the fact that OP No. 341 of 1993 filed by Petitioner No. 1 against TCIL for recovery of the value of the goods was pending before the NCDRC. 8. After the above reply was submitted, no action was taken for a long time. Meanwhile the sunset peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MA had been provided. 12. Mr. R.K. Virmani, learned Senior counsel appearing for the Petitioners submits that the obligation under Section 18(2) FERA that the Petitioners should take reasonable steps to receive back the goods sent by way of export had been fulfilled in the instant case. Even if the court were not to go by the fact that the Petitioners had also taken steps to recover the value of the goods from TCIL since the matter was sub judice before the Supreme Court, nevertheless as long as the Petitioners were able to show that they had taken reasonable steps to receive back the goods in question, the provisions of Section 18(2) FERA were not attracted. He reiterated other submissions about the notice under Section 49(3) FEMA not having been issued within the sunset period, i.e., on or before31st May 2002and further the notice not having been issued by a properly authorized Adjudicating Officer. 13. Despite the case being heard finally on27th August 2010and22nd September 2010, none appeared for the Respondents on either date. 14. As far as the contention that the notice dated28th February 2002issued by the DoE is not really a notice within the meaning of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at followed such notice. 19. This brings up the last contention of the Petitioners on merits. Sections 18(2) and 18(3) of the FERA read as under : "18. Payment for exported goods.......... (2) Where any export of goods to which a notification under clause (a) of sub-section (1) applies, has been made, no person shall, except with the permission of the Reserve Bank, do or refrain from doing anything, or take or refrain from taking any action, which has the effect of securing- (A) in a case falling under sub-clause (i) or sub-clause (ii) of clause (a) of sub-section (1),- (a) that payment for the goods- (i) is made otherwise than in the prescribed manner, or (ii) is delayed beyond the period prescribed under clause (a) of sub-section (1), or (b) that the proceeds of sale of the goods exported do not represent the full export value of the goods subject to such deductions, if any, as may be allowed by the Reserve Bank; and (B) in a case falling under sub-clause (ii) of clause (a) of sub-section (1), also that the sale of the goods is delayed to an extent which is unreasonable having regard to the ordinary course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner No. 1 took steps to receive the goods back atDelhiand also recover the amounts constituting the export proceeds. The Petitioners have in fact succeeded in their claim before the NCDRC. Independent of that fact, it has been shown by the Petitioners that they took all reasonable steps to receive the goods back atNew Delhi. In the circumstances, there was no contravention by the Petitioners of Section 18(2) FERA. 22. As regards the preliminary objection raised by the DoE, the Petitioners cannot possibly go before the Appellate Authority at this stage since there is in fact no adjudication order. The Petitioners have been able to show that the essential ingredient of Section 18(2) read with Section 18(3) FERA has not been satisfied in the present case. It will not be in the interests of justice after nearly eight years, to require the Petitioners to face the entire proceedings before the Adjudicating Authority to demonstrate that the notice issued to them on28th February 2002was without jurisdiction. The facts necessary to even prima facie draw the inference of violation of Section 18(2) FERA by the Petitioners do not exist in the present case. 23. Consequently, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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