9911796707
TMI Blog1992 (8) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... vely. 2. Enquiries revealed that during 1980-81, Bismi Tanning Co. (appellant in Appeal No. 130 of 1989) had exported goods valued at US $ 99,753 and that the following export bills were pending realisation: GRI Form No. & Date Invoice Value (In U.S. $) Name of Buyer 1. MAE 166103 14-11-1980 10,380.80 Deupaks GmbH, Frankfurt (W. Germany) 2. " 191670 25-11-1980 5,016.00 " " 3. " 191674 12-12-1980 12,004.80 " " 4. " 191996 2-1-1981 14,785.60 " " 5. " 191547 13-1-1981 6,400.00 " " 6. " 191997 24-2-1981 5,844.80 " " 7. " 191673 5-12-1980 16,007.60 " " 8. " 612299 14-10-1980 10,800.00 Kascgeshe 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending bills pertaining to Deupaks GmbH, West Germany, the appellants had initiated legal proceedings in Germany and obtained a decree for the amount and that the decree, however, could not be executed as the appellants could not remit lawyer's fees for want of funds even though the appellants had obtained the approval of Reserve Bank of India for remitting lawyer's fees of DM 8,000. As regards pending bills concerning Kascgesche Lederbekliedung GmbH Kolin, West Germany, counsel for the appellants submitted that the appellants' lawyer in Germany had filed a case, but the same could not also be pursued by the lawyers due to shortage of funds. The counsel for the appellants further submitted that as the appellants' banker, na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able. 8. From the above, it is quite clear that the appellants' main explanation for non-realisation of the export proceeds is that they could not realise the export proceeds as they were not in a position to remit lawyer's fees to pursue the legal actions against the foreign buyers. This gives rise to a vital question whether such an explanation would be acceptable under section 18(2) read with sub-section (3) thereof. In other words, whether the appellants can be said to have refrained from taking steps which had the effect of securing the export proceeds. 9. The Adjudicating Officer concluded as follows: "Admittedly the proceeds continue to be outstanding and though some efforts were made by M/s Bismi Tanning Company ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds of the export in issue could not be repatriated to India and that that was mainly due to the utter negligence on the part of the exporter. 11. While considering the scope and import of section 12(2) which corresponds to section 18(2) the Delhi High Court in Escorts Ltd. v. FERA [1985] 5 ECC 141, observed as follows: "The charge against the appellants, as is apparent from the order of the learned Special Director, is that without any general or special permission of the Reserve Bank of India, they refrained from taking necessary steps for realising the full value of the goods exported to the buyer. The steps which the appellants failed to take related to the appointment of an arbitrator for deciding the disputes raised by the buy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (ii) such expenses may, however, form such a basis if it is established that the expenses involved in repatriation of the export proceeds would result in loss of foreign exchange more than the value of the export proceeds. 13. It is not the case of the appellants that they could not realise the export proceeds as the expenses involved for realisation were more than the value of the export proceeds. I, therefore, endorse the conclusion of the Assessing Officer that the appellants should have made all-out efforts to remit the lawyer's fees for the purpose. The appellants have not indicated as to what other efforts were made by them for securing finances for remitting the lawyer's fees after their banker, Lakshmi Vilas Bank, Madr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
