TMI Blog2019 (4) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... during the financial year 1992-93 to 1995-96 was ₹ 5.61 crores. There is no outstanding bills of the Appellant with their Banker for the financial years 1997-98, 1998-99, 1999-2000) and the said fact has been certified by Global Trust Bank Ltd. The unrealized amount of ₹ 17,85,835/- does not constitute even 5% of the total turnover. The Appellant is entitled for write-off of the unrealized export proceeds as per RBI Circular No.88 dated 12.03.2013. Under these circumstances and in the light of above, it is evident that it is held that the Appellant has taken all sufficient, reasonable and timely steps which are legally permissible within their limited means and to realize the unpaid export value. The Appellant has discharged the burden cast upon him under Section 18(2) r.w. 18(3) of FERA, 1973. In this context the appellant seeks to rely upon the decisions of the Hon‟ble Delhi High Court in Ganesh Polytex Ltd. and Ors. Vs. Union of India (UOI) and Ors. [2010 (9) TMI 463 - DELHI HIGH COURT] The appeal is allowed, the benefit is given to the appellant who should not be penalized for non-repatriation of the full export value within the prescribed period, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Serif Impex Ltd. exported consignments of garment of the total value of ₹ 5.61 crores during the financial years 1992-93 to 1995-96. All the export proceeds were realized except a sum ₹ 17,85,835/- exported during the year 1993-94 to M/s. Gulf Cooperative Factory, P.O. Box No. 2193, Doha, Qatar on 90 days DA basis. (b). It was the case of the Department that information was received from Corporation Bank on 29.03.2001 together with copies of 5 GR forms (out of 6) that the appellant failed to secure the value of the aforesaid goods within the stipulated period of 90 days without the permission of RBI. (c ). On the based on the allegations, a Show Cause Notice dated 29.06.2001 was issued to the appellant. (d). The appellant filed appeal no. 497/2001 before this Tribunal challenging adjudicating order dated 12.10.2001. The appellant also placed on record the status of legal proceedings instituted by the appellant in Doha, Qatar and other relevant documents. (e ) This tribunal after perusal of the facts of the case and documents on record, by order dated 18.08.2008 quashed and set aside adjudication order dated 12.10.2001 and remanded the matter to the Adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fforts, the appellant may not be held liable for contravention of the said provisions, the benefit can be denied by the party. 10. Under Section 18(3) of the FERA, a presumption arises where the exporter does not receive the payment for exports within the prescribed period where it shall be presumed that contravention of the provisions of sub-section (3) has taken place unless it is proved by the appellant that he has taken all reasonable steps to recover the payments of the exports. The said presumption is rebuttable. In the present case there is an evidence to show that the appellant has made all reasonable efforts for expeditious realization of the full export value. 11. It appears from the material available on record, it shows that the appellant had taken steps as per permissible methods to realize the balance amount (unpaid export proceeds). 12. By letter dated 21.08.1996, the overseas buyer informed the appellant that they could not sale a large portion of the imported goods and has ran into financial difficulties, proposed the appellant to settle the outstanding export proceeds and requested the appellant not to initiate the legal proceedings to spoil the long s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper and another sum of 1460 QR for the purpose of summons by publication (the fees of newpapers) to his advocate Ahmed Ali Marafi on 24.11.1998. Another amount of QR 2000(US$ 549.30) was remitted on 16.03.2001 towards the fees of the expert appointed by the Court in the matter. 16.3. The appellant has been regularly filing ETX applications for extension of time for realization of the unpaid export proceeds to RBI through authorized dealer from time to time including on 16.1.1996, 27.11.1996,25.11.1998, 20.03.2001,23.08.2001,08.10.2001 (193-194) bringing to the notice of RBI the pendency of the legal suit filed against the overseas buyers and requesting RBI for grant of extension of time for realization of the outstanding export proceeds. All these applications have been acknowledged by the overseas buyer. It is submitted that the EXT applications submitted to the RBI through authorized dealer are pending decision and the same have not been rejected by the RBI. 17. The appellant seeks to rely upon the following decisions in support of his submission:- (i) Allied Industrial Enterprises Vs. DE (Appeal No. 264 of 1987) (Vol Page 84-87) (ii) Knight Exprt Vs. DE (1998 Taxma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has received a judgement dated 22.11.1999 and a copy of report of AI Mohanadi Audit Bureau dated 29.12.2003 from its on 31.10.2007. As seen from the copy of the report that the accounting expert under the direction if the Court had considered the claims of both the Appellant as well as Gulf Corporation Factory and has submitted its final report to the Court wherein a claim of US$69171 has been raised by Gulf Corporation Factory. 22. It is stated on behalf of appellant that it has since discounted its business and the Appellant neither has the finances to carry on a protracted litigation in Doha, Qatar. (Additional affidavit in this regard has also been filed). 23. The Appellant has addressed numerous letters to its Advocate Ahmed Ali Morafi to enquire about the current status of the matter but unfortunately had not received any written response from him. The Appellant has also tried to contact the said advocate on his phone number mentioned in his letter head but is unable to reach him on the same. 24. It has come on record that even after taking all reasonable steps, it is quite evident that the export proceeds could not be realized for reasons /due to circumstances wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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