TMI Blog2015 (2) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. Provisions of Section 68 of FERA, 1973 are more explicit in this regard. I, therefore, find that the impugned order imposing joint penalty on the partners before proving that non-realisation of the three GRs was attributable to each of them, is liable to be quashed and set aside. It appears to me from the correspondence exchanged between the appellants and the authorized dealer Punjab National Bank that the appellants had been realizing full amounts of export proceeds against all other exports made under different GRs but payment against three GRs in question could not be realized due to taking delivery of the goods by the foreign buyer fraudulently. That there had been fraudulent delivery of the goods is proved by the certificate dated 20-1-2003 issued by the authorized dealer whereunder they have confirmed the same and also the fact of original complete set of documents in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port proceeds of US $ 23580.02 in respect of goods exported under 3 GRIs. This Tribunal while disposing of the application for dispensation of pre-deposit penalty by order dated 16-8-2010 allowed 40% dispensation of penalty but directed the appellants to make pre-deposit of 60% of total penalty within 30 days from that date. It is stated that the appellant has made pre-deposit in compliance with the directions of this Tribunal and submitted copy of receipt of the respective deposit of ₹ 90,000/-. The appellant filed written submissions which are taken on record. Presently, this appeal is taken up for final disposal on merit. 3. It is seen from the A.O. itself that the Show Cause Notice (SCN) No. 71/99/SCN/D.D., dated 22-11-1999 was issued to the appellants alleging non-realisation of the export proceeds in respect of 11 GRIs totaling US $ 84,054 and DM 70925 against exports made to USA and Germany during the year 1995 but realisation of export proceeds under 8 GRIs had taken place during the year 8-1-1996 to 20-9-1999 prior to the issue of SCN itself which was on 22-11-1999. Accordingly, the ld. adjudicating officer has found that out of 11 GRIs the appellants have not rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stablished that the court in fixing the punishment for any particular evidence should take into consideration the nature of it, the circumstances in which it was committed, the degree of deliberation shown by the offender, the measure of punishment should be proportionate to the gravity of offence. The consolidated penalty imposed by the Adjudicating Officer without making attempt of taking into consideration the degree of deliberations shown by the appellants involved a failure of justice. Therefore, the imposition of penalty jointly and severally cannot be sustained and cannot be supported on account of this irregularity and must, therefore, be set aside. 6. In view of the above contention of the appellants, before arriving at any finding I take myself to the impugned order whereunder the joint penalty on the appellant firm and its partners was imposed. While going through the order of penalty, I have noted that there is hardly any discussion on the role of the partners that led to non-realisation of the export proceeds of the 3 GRs and the ld. adjudicating officer has not arrived at any finding to show that the partners were responsible for non-realisation of the export proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort proceeds against all other exports made under different GRs but payment against three GRs in question could not be realized due to taking delivery of the goods by the foreign buyer fraudulently. That there had been fraudulent delivery of the goods is proved by the certificate dated 20-1-2003 issued by the authorized dealer whereunder they have confirmed the same and also the fact of original complete set of documents in their possession. Therefore, I am led to believe that the appellants were making all reasonable efforts for realizing the export proceeds but realization in respect of three pending GRs could not be made due to circumstance beyond their control. 10. As regards the question of approaching to RBI, the appellant submitted that the appellants had submitted the position of each GRs to the authorised dealer Punjab National Bank vide letter dated 22-8-1997 whereunder they also explained the position of the three unrealised GRs, reason for non-realisation and filing of suit before the Court. In this regard, I also find that it is for the authorised dealer to inform the RBI the reason and action taken for the said unrealised GRs. In view thereof, the contrary view tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords that there is a letter written to Punjab National Bank by Reserve Bank of India on 24-6-1999 whereunder RBI has asked Punjab National Bank to furnish documentary evidence in respect of progress/development in the court case concerning the three pending GRs. It is evident from the said letter of 24-6-1999 that the RBI was duly informed by the authorized dealer about the suit filed by the appellants in respect of three pending GRs and it was because of this fact that they wrote to Punjab National Bank to furnish evidence in respect of filing suit. Therefore, the finding to the contrary is liable to be set aside. 14. I have given our careful consideration to the respective submissions by the parties. On plain reading of the sub section (2) and sub section (3) of Section 18 of FERA, 1973, it is crystal clear that the Act does not render non-realisation of export proceeds per se punishable thereunder. The essential ingredients of the sub-section (2) of Section 18 is doing or refraining from doing anything or taking or refraining from doing anything or taking or refraining from taking any action which has the effect of securing the result which is envisaged either in clause (a) o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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