9911796707
TMI Blog1998 (3) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... t Appeal No. 620 of 1990 was initially intended to be on behalf of the firm as well as its partners Shiv Bhargav and partner but the name of the firm was struck off. Shri Bhandari, the learned counsel for the appellant, submitted at the outset that the striking off the name of the appellant-firm was inadvertently done under the misconception, as stated in para 9, that the firm was under dissolution and, therefore, cannot file appeal under its name. He submitted that it is clear from a complete perusal of the memorandum of appeal that it was intended on behalf of the firm as well as Shiv Bhargav and partner. He further submitted that since both the partners, who constituted the firm have already filed their appeals, these appeals together sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply filed by Dr. Shamsuddin. 4. Shri Bhandari submitted that the cryptic information furnished by the bank to the department initially before the issue of Show Cause Notice as well as the latest information enclosed with Dr. Shamsuddin's written reply are not reliable. He submitted that the remarks made in the Annexure to the letter of the bank dated 22-12-1987 addressed to Assistant Director that 'payment not received, shipper is not making any effort with realise the proceeds are most irresponsible as the bank was already in possession of the entire correspondence made with the foreign buyers and foreign buyers' banks as well as with the RBI and other authorities in respect of each of the said 21 GRIs. He submitted that the appellants ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own case of recovery of an amount of Rs. 13,21,460.75 adding that the said amount is on account of export bills remaining unrealised and that the amount includes the interest up to 10-5-1989. Shri Bhandari referred to para 17 of the compilation filed by the bank against the appellant for the recovery of their dues referred to in the correspondence filed by Dr. Shamsuddin. In this para, the bank has referred to the export bills purchased by the bank which remained unpaid as shown in Annexure B. Annexure-B mentions a total amount of Rs. 7,94,894 only in respect of these bills. The remaining amount in this Annexure is the amount of interest accrued on the said amount of Rs. 7,94,894 which makes a total of Rs. 13,21,460.75. It is further state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the learned Adjudicating Officer also erred in passing the ex parte order without any evidence. The letter of the bank relied on in the show- cause notice cannot be considered to be an evidence. 5. Shri Bhandari further submitted that he has already brought out the factual position in respect of each GRI in his tabular statement which has not been controverted by Dr. Shamsuddin. 6. I have carefully gone through the compilation filed by Shri Bhandari. It is seen from the impugned order that the conclusion that the appellant has failed to realise the outstanding amount of Rs. 10,46,264.44 as intimated by the bank is guided by the consideration that since there was no reply to the SCN, the appellant had 'no explanation to offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly cleared by the party who wanted credit of 90 days. Appellant's bank allowed a credit of 90 days but the foreign buyer became bankrupt soon after receiving the goods. The appellant immediately instructed the bank to lodge the claim with the trustees. No amounts appeared to have been received from the trustees. The RBI had been informed of the position. In respect of GRIs at Sl. Nos. 14 and 19, the foreign buyer made a short payment of Rs. 8,652 only. On the appellant's instructions, the bank protested the bill for short payment. This correspondence is on the record that the appellant pressurised the foreign buyer to make the payment and even threatened him of action but even with that the payment could not be realised. It is stated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount. It would, thus, be seen that the non-payment outstanding amount of GRIs where the goods were received by the foreign buyer, is not the result of any act or omission on the part of the appellant. In respect of other GRIs where the goods were not received by the foreign party, the question of securing payment for the same does not arise. In view thereof, the appellants cannot be held guilty of contravention of section 18(2). Since the appellant-firm cannot be held guilty, the question of imposition of any penalty on its partners does not arise. In the result, both the appeals are allowed and the impugned order is set aside. The respondents are directed to refund the amount of pre-deposit to the persons, who had deposited the said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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