TMI Blog2016 (1) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods in India and is a conclusive proof and proceedings ought to have been dropped in this perspective. Held that:- it is not in dispute that the entire foreign exchange acquired by the appellant has been remitted to the foreign seller and it is also undisputed that the imported goods were stored in a warehouse and as the customs duty and warehousing charges could not be paid by the appellant, the goods were sold. In our considered view, there is no contravention of Section 8(3) or 8(4) of FERA, 1973 as only proof of import of goods has to be filed and Bill of Entry of WH is a valid and convincing proof of the arrival of goods in India. As we have stated earlier, there is no allegation that the foreign exchange was used otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough Industrial Development Bank of India, Forex Service Department, Mumbai on 16-6-1997. Show cause notice was issued to the appellant alleging contravention of Section 8(3) r/w Section 8(4) of the Foreign Exchange Regulation Act, 1973 r/w Section 49(3) and 49(4) of Foreign Exchange Management Act, 1999. It was alleged that non submission of documentary evidence would lead to the conclusion that no import covering the subject remittance was made by the noticee/appellant. Reply dated 10-6-2002 and 15-9-2009 by the appellant were filed forwarding copies of proforma invoice dated 12-10-1996 from M/s Brimco Industrial Co. Ltd., Taiwan for US $ 410,550 and photo copy of the Bill of Entry for the same, claimed to be against the remittance in que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs in a Warehouse run by the Central Warehousing Corporation. Copy of the dues of Warehousing charges has also been annexed as Annexure A-4 to the Memo of Appeal. Since after expiry of the Bond period, the goods could be cleared, therefore, the Customs Department issued a notice, copy of which is Annexure A-5 and as the goods were lying in the Warehouse for a long period, therefore, the Central Warehousing Corporation issued notice dated 15-12-1999 for the payment of Warehousing charges, copy of which is as Annexure A-6. Copy of Bill of Entry was submitted at the time of personal hearing as evidence of the arrival of the goods. However, the Adjudicating authority illegally did not accept the Bill of Entry on the basis of rupee valuat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed dealer IDBI and it is not provided anywhere that only Bill of Exchange should be considered as the conclusive proof of import of goods. Further submission is that the Bill of Entry is a Customs document and Customs authorities did not held the appellant guilty of any violation. Since the appellant was not able to pay duty or warehousing charges, the goods were auctioned and duty and charges were realized. The foreign exchange was not used for any other purpose than for which it was issued. There is no allegation against the appellant that foreign exchange was not utilized for the purpose for which it was issued. Thus, no case against the appellant is made out. Reliance has been placed on M/s. Themis Agencies, Appellant v. Union of India, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appeal at the time of filing of the appeal and were not filed subsequently. This fact is also to be borne in mind that it has been specifically averred that though Bill of Lading, copy of invoice etc. were demanded by the adjudicating authority and time was sought by the appellant for filing the same still without waiting for the papers to be filed, the adjudication order was passed and it appears that adequate opportunity was not afforded to the appellant to file additional proof of the import of goods to India. Therefore, we are not convinced with the arguments of the ld. Legal Consultant and proceed to consider the additional evidence in support of import filed with the Memo of Appeal at the appellate stage. 7. We are in agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is also undisputed that the imported goods were stored in a warehouse and as the customs duty and warehousing charges could not be paid by the appellant, the goods were sold. In our considered view, there is no contravention of Section 8(3) or 8(4) of FERA, 1973 as only proof of import of goods has to be filed and Bill of Entry of WH is a valid and convincing proof of the arrival of goods in India. As we have stated earlier, there is no allegation that the foreign exchange was used otherwise for the purpose for which it was issued or the appellant has failed to comply with any of the conditions required by him to be fulfilled, therefore, in our views contravention of the Section 8(3) and 8(4) are not made out. 9. In view of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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