TMI Blog1992 (5) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 1987 to Finland. They, however, failed to realise the export proceeds of US $ 4,530. Show-cause notice as required under section 51 of the Act was given to the appellant. As the Adjudicating Officer was not satisfied with the explanation given by the appellant, adjudication proceedings were drawn against them. After having considered the adjudication proceedings, the Adjudicating Officer held the appellants guilty of the contravention of section 18(2) on the basis of his following findings: (i)that the export proceeds of US $ 4,530 have not been realised by Balwant Bros, against the export made by them during the year 1987; (ii)that the export was made on COD basis and after the despatch of the goods, the exporter changed the term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took all steps within their power to recover the export proceeds. They approached their bankers, the Reserve Bank of India and the Ambassador of India in Finland in the matter; (4)that the learned Deputy Director has failed to appreciate that reason for non-realisation was dispute regarding quality of the goods, consignee offering reduction in prices and the unduly long time taken by the RBI to settle the issue; (5)that the learned Deputy Director has failed to appreciate that the terms for payment were changed from COD to 90 days after the delivery of the goods as the goods had already passed through Customs and in the best interests of their business, they had no option except to agree to the terms. Telex message and correspondence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bassy's letter dated 7-11-1989, the consignee has not yet taken delivery of the goods. Therefore, the question of any contravention of section 18(2) did not arise. (10)that even otherwise, the amount of penalty is excessive and disproportionate to the value of the export proceeds. 4. Almost similar grounds in substance have been raised in Appeal No. 533 of 1989 also. 5. During the course of arguments, it was contended on behalf of the appellants that appellants had, in fact, made sincere efforts to realise the export value of the goods and that as regards reduction of the GR value, they have approached the RBI for the grant of permission which is still awaited on account of the failure of the Enforcement Directorate to give NOC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the ambit of the manner specified in that Schedule. Even otherwise, such a mere change of the terms of payment may not be justifiably regarded as a basis for taking a view that the exporter has not made sincere efforts to realise the export value of the goods. Such change may sometimes be a bona fide need of the hour. There is no material to indicate that the appellants changed the terms of payment from COD basis to 90 days AD with ulterior motives. 7. Similarly, the plea that the appellants should have realised at least US $ 3,000 in place of the full export value, when the same was offered by the foreign buyers is also not legally tenable. In law, a buyer is not supposed to realise the reduced value of the goods without permission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds intentionally. A perusal of the paper book filed by the respondent indicates that the letter No. BB/47/1989-90 dated 10-3-1989 was also enclosed with the aforesaid letter dated 23-10-1989. The letter dated 10-3-1989 contains reference to certain correspondence made by the respondent even during the prescribed period of six months. It does not appear from a perusal of the adjudication order that the Adjudicating Officer had considered the facts mentioned in the aforementioned letter dated 10-3-1989. Nor does the adjudication order indicates that the appellants were afforded opportunity to produce the documents/letters mentioned in that letter. Further, the paper book filed by the respondent also contains letters dated 2-2-1988, 17-11-198 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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