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2016 (1) TMI 183 - APPELLATE TRIBUNAL FOR FOREIGN EXCHANGE NEW DELHI

2016 (1) TMI 183 - APPELLATE TRIBUNAL FOR FOREIGN EXCHANGE, NEW DELHI - 2015 (324) E.L.T. 600 (ATFE) - Importers who had acquired foreign exchange from their authorized dealers for the purpose of imports of specified goods but had failed to submit the Exchange Control copy of Bill of Entry in respect of the relevant imports to their authorized dealers - It has been contended on behalf of the appellant that an amount of ₹ 410,550 US $ was remitted by IDBI by opening L/C (Letter of Credit). .....

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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 .....

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onsultant for the respondent and have also perused the record. 1. Relevant facts bereft of details, for the disposal of the instant appeal are that the Reserve Bank of India Mumbai had forwarded a list of importers who had acquired foreign exchange from their authorized dealers for the purpose of imports of specified goods but had failed to submit the Exchange Control copy of Bill of Entry in respect of the relevant imports to their authorized dealers as evidence of actual import of the goo .....

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. 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- .....

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ere initiated, appellant was represented through Counsel and photo copy of Bill of Entry for US $ 410,550 was filed. The Adjudicating Officer held the appellant company guilty of contravention of provisions and imposed a penalty of ₹ 1,50,00,000/- on M/s. Sun Star Future Wood Ltd., the company/appellant herein. Against the impugned Adjudication Order No. ADJ/524/B/SDE/SKP/2003/7941, dated 19-12-2003, the instant appeal has been filed by the appellant. 2. It has been contended on behal .....

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t the Port. Copy of the Port charges has also been annexed with Memorandum of appeal. Submission is that after arrival in India the goods were kept under the Bond of 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 w .....

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demanded documents such as Bill of Lading, invoice, copy of L/C, etc., as time was short for retrieving, the said documents as the company was out of business, however, without waiting for the documents to be filed, the impugned order was passed arbitrarily. 3. Submission is that no contravention of any of the provisions of FERA or FEMA are made out against the appellant. The agricultural land belonging to the family of the Director of the company has also been attached by the Enforcement D .....

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ll of Entry for home consumption/postal/wrappers at the time of effecting remittances, it has been provided that if no response within the prescribed period of three months from the date of remittance is received by the authorized dealer, a reminder by registered post with acknowledgement due should be issued not later than one month from the date of the first reminder. No such reminder was issued by the authorized dealer IDBI and it is not provided anywhere that only Bill of Exchange should be .....

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r 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, Respondent (2007) (XC1)-GJX-0003-BOM in Fera No. 63 of 2006 decided on 12-1-2007 by Hon ble Bombay High Court. It has been submitted that the instant matter is squarely covered by the said judgment. 4. Ms. Natasha Sarkar, Legal Consultant, has very ably defended the impugned order and has submitted that only photo copy of Bill .....

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be relegated to the adjudicating authority in case the papers filed by the appellant are to be considered. 6. We have considered the submissions of Ld. Counsel for the appellant as well as Ld. Legal Consultant and are of the view that the instant appeal is of the year 2006 and already a period of almost nine years has passed since the appeal was filed before this Tribunal and since the proceedings in appeal are continuation of the original proceedings before the Subordinate authority, the A .....

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g 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 agreement with the arguments of Ld. Counsel for the appellant that the judgment of .....

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rrival of the goods, the appellant therein filed three Bills of Entry for WH (Warehousing) the said goods, the Customs authorities permitted the goods to be warehoused and thereupon the said goods were cleared and stored in the godown belonging to the Central Warehousing Corporation. Due to financial difficulties, two consignments out of three could not be cleared in the case before Hon ble Bombay High Court during the permitted bond period as a result the Customs authorities/Central Warehousing .....

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