9911796707
TMI Blog2005 (9) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... by exonerating the respondents even when (1) Reserve Bank of India by letter dated 11-12-2004 as available on records, declined to accord write-off against the outstanding export proceeds and (2) request for extension of period or grant of waiver was pending with RBI. Learned counsel Shri J.S. Arora on behalf of respondents has filed written submissions which are taken on record. 2. This adjudication order is passed on 25-6-2004 but the revision petition is filed on 21-3-2005 after expiry of about 9 months from the date of the impugned order. The revision petition does not contain any statement explaining the period of delay. According to Shri T.K. Gadoo, DLA revision petition is filed under the provisions of sub-section (6) of section 19 of FEMA, 1999 where no limitation period is prescribed, hence, no explanation is required to be made. Further it is argued that revisional powers are with this Tribunal and the petitioner is merely enabling the Tribunal to exercise the jurisdiction residing in it. Therefore, it is correct to state that revision petition can be filed at any point of time and filing revision after about 9 months from the date of impugned order cannot be termed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is given as revision petition. Therefore, on this factual scenario, this cannot be given the name of a revision petition factually and actually. 4. This Tribunal is empowered under the provisions of section 19(6) to examine illegality, propriety and correctness of the adjudication order. The law is well settled that revision is an exceptional remedy unlike an appeal. Needless to say that this is an exceptional power which has to be invoked sparingly. However, the position of filing of revision petition in the Registry of this Tribunal by Enforcement Directorate is not so. In the year 2005 (from 1st January to 9th September) 43 revision petitions are filed as against 68 in the year 2004. All these revision petitions are filed by Directorate of Enforcement and none other. Though an appeal is also available to Central Government under the provisions of section 19(2) but none has been filed by Enforcement Directorate during the year of 2004 or 2005. The above figure shows that Enforcement Directorate is of morality and ethics. Nothing is stated anywhere in the pleadings that why Enforcement Directorate took 9 months in filing this revision petition. This long delay shows waiver i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplates that a person may seek permission of the RBI to do or refrain from doing anything or take or refrain from taking any action which has the specified effect. If such permission is sought and given by the RBI, there would be no contravention of section 18(2) even if export proceeds are not realized. If such permission is not sought at all, or if sought, the same has been refused, the exporter will be guilty of contravention of section 18(2) if he fails to prove that he had not taken all the effective steps as in the circumstances of the case would have been reasonably taken by a prudent man dealing in export business." 6. The gravamen of charge under the provisions of section 18(2) consists of not taking reasonably effective steps in the particular circumstances of the case which are required to be taken by a prudent exporter. Here the contravention relates to taking or not taking of effective steps. It is not the non-realization of export proceeds. The Legislature has not made non-receipt of export proceeds an offence under FER Act, 1973, though sub-section (3) of section 18 further creates of legal presumption against the exporter but the same is rebuttable and can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of section 18(2) of FER Act, 1973 against respondents. The adjudicating authority while passing the impugned order has taken into consideration all evidence produced before it and it is so discussed in the impugned order. The challenge of the Adjudication Order by Enforcement Directorate is based on the RBI declination to grant write-off and non-grant of extension for repatriation of the export proceeds. Though RBI enjoys independent authority to grant write-off or extension but that does not mean an automatic fastening of liability without considering other evidence on record. The adjudicating authority has taken sufficient care to discuss the evidence available and has arrived at conclusion of absolving the respondents from the liability of contravention of section 18(2). For these reasons the challenge by revision petition of the impugned order is wrong and incorrect. 9. In the position discussed in the above paragraphs, it is difficult to say that the adjudicating authority has disregarded any evidence for arriving at the conclusion in the impugned order or the adjudicating authority acted with no evidence. The impugned order is passed after exercising judicial discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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