TMI Blog2014 (1) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... l was not right in law in saying that the burden with respect to proof of surrendering the export incentive shifted to the Directorate of Enforcement on account of their not producing any documents with respect to the extent of the export incentive availed of by the exporters. The burden in this regard, particularly, in view of the RBI communication dated 24.4.2003, always continued to remain with the exporters and it was for them to satisfy the Adjudicating Officer that all the export incentives which they had availed of in respect of GRs which were subject matter of the RBI letter dated 24.4.2003 had been fully surrendered by them. Even otherwise, an information of this nature is not expected to be in possession of the Directorate. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Special Director of Enforcement. The documents to the overseas buyers were sent through Syndicate Bank, Connaught Place, New Delhi. The case of the Department was that the respondents had failed to secure export value to the extent of Rs.1,32,53,844.00 in respect of the goods exported by them. The respondents were required to show cause as to why the adjudication proceedings as contemplated under Section 51 of the FERA read with sub-sections (3) (4) of Section 49 of the Foreign Exchange Management Act,1999 should not be held against them. 3. The respondents applied to the Reserve Bank of India (for short RBI ) seeking write off/set off of the unrealized amount. The RBI vide its letter dated 24.4.2003 addressed to Syndicate Bank, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S statement and only thirteen (13) GRs for a total sum of Rs.1,11,15,200/- were outstanding and the exporters had not submitted any documentary evidence of surrendering proportionate export incentive to the Government Departments as per the RBI directions. 5. Noticing that the RBI had given conditional write-off/set-off in respect of the above-referred thirteen (13) GR forms, the Special Director held the respondents guilty of contravention of Section 18 (2) and imposed penalty of Rs.20.00 lakh upon the partnership firm, House of Services, and penalties of Rs.10.00 lakh each on its Partners, Maya Sanyal and Indrani Sanyal. 6. Being aggrieved from the order of the Special Director of Enforcement, the respondents preferred an appeal befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exporters surrendering the amount of export incentive availed of proportionate to the amount being written off and submitting the appropriate documentary evidence in this regard to the Bank. It would, thus, be seen that the approval granted by the RBI was not unconditional and was dependent upon the respondents before this Court satisfying the Bank that they had surrendered, to the Customs Department, all the export incentives which they had availed of in respect of the GRs for which write-off was sought by them. 8. Admittedly, the respondents did not produce any documentary evidence either before the Adjudicating Officer or before the Tribunal which would indicate the exact amount of export incentives availed of by them in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the documents connected with the export made by them as also the amount credited to their account. 9. In my view, the Tribunal was not right in concluding that the exporters had discharged the burden placed on them by producing before the Board two cheques of Rs.1,88,176/- and Rs.1,17,841/-, which they claimed to have sent to the Commissioner of Customs. Admittedly, the cheques referred to above were never encashed by the Commissioner of Customs. Obviously the cheques could not have been encashed by him without first verifying the extent of export incentive availed by the exporters in respect of GRs which were subject matter of RBI communication dated 24.4.2003. In my view, the Tribunal was not right in law in saying that the burden wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s remanded back to the Special Director of Enforcement to consider it afresh in the light of the additional documents which the respondents have filed along with affidavit dated 18.1.2004. The respondents are also at liberty to submit additional documents, if any, before the Adjudicating Officer within a period of four (4) weeks from today. The parties shall appear before the Adjudicating Officer on 25.2.2014 for his considering the additional documents, hearing the parties and then passing an appropriate order. A fresh order in terms of this direction shall be passed by the Adjudicating Officer within eight (8) weeks of the parties appearing before it. Once a fresh order is passed by the Adjudicating Officer in terms of this direction, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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