9911796707
TMI Blog2025 (5) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- on M/s Access Diamonds Private Limited, ii. Rs. 2,00,000/- on Shri Hanvant Singh Inda, Director of M/s Access Diamonds Private Limited. 2. The facts of the case, are that Complaint No. T-3/293-B/ 2017 dated 04.12.2018 was filed by the Deputy Director, Mumbai Zonal Office-I, before the Adjudicating Authority. After going through the allegations, the Additional Director issued Show Cause Notice to the Noticees' (herein respondents) for failing to realise the export remittance to extent of USD 20,81,686.250 (equivalent to Rs. 10,07,24,207.38/-). On notice, the said Noticee vide letter dated 01.06.2018 submitted the details of export made by them and export proceeds received as well as outstanding remittance. Statement of Sh. Premal Shah, Director of the company was recorded on 03.06.2018 under Section 37 of FEMA, 1999, wherein he stated that Shri Hanvant Singh Inda was the whole-time Director of the company, since 2010. The said remittance could not be remitted because the overseas buyer absconded and they are trying to trace him and have already applied to RBI for permission to receive the said remittances. They exported goods (cut and polished diamonds etc.) in June, 2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order is passed in favour of the department and imposing penalty is discretionary power of the Ld. Adjudicating Authority, the department cannot imposed its view on quantum of penalty. Respondent No.1 has been paid Rs. 1,00,000/- out of Rs. 8,00,000/- and Respondent No. 2 have already paid entire penalty amount of Rs. 2,00,000/- in respect of Adjudication Order No. ADJ/05/ADE/SK/2019/FEMA dated 30.12.2019. Hence, the appeal is barred, not maintainable and deserved to be dismissed. He argued that Respondent No. 1 is in the business of precious metals and diamonds and had Exported diamonds to the overseas suppliers during the financial year 2008-09 and 2009-10 for the total, tune of USD 26.52M, out of which Respondent No.1 had exported cut and polished diamonds to various overseas parties during the financial year 2009-10 for the tune of USD 13.27M, and received USD 11.19M towards payment of export proceeds. They have earned foreign exchange for the country to the large amount as stated. He point out that approximately more than 85% of the amount of the proceeds for the export shipments were recovered. However, shipments made to Tifany Gold Pte Ltd and Western Alliance International ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the Respondent No. 1 realized more than 85% of the exports and only two transactions with Tifany Gold Pte Ltd and Western Alliance International Ltd. turned adverse. He argued that the actions of the ED would have a debilitating effect upon the exporters in India who would always have a worry that in case any of their transaction(s) turns adverse, they would not only bear loss upon that transaction but also be subjected to various penalties and fines by the ED. He submitted that before deciding penalty, the Adjudicating Authority ought to have taken a holistic view of the circumstances which demonstrate that the Respondents took proper and reasonable steps within their means to recover the dues. Further, the Ld. Adjudicating Authority ought to have appreciated that more than 85% of the exports had been realized, hence even the imposition of said penalty does not arise. Further, the Adjudicating Authority itself held that there was no under invoicing or suppression on the part of the Respondent thus proving no mens rea on the part of the Respondents. Hence, Ld. Adjudicating Authority erred in holding the Respondent No. 1 & 2 liable under the charge of Section 8 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed penalty equal to ten times the amount of entry tax. In fact, in the present case the statute (FEMA) itself provides for a penalty up to thrice the sum involved in such contravention and thereby gives explicit scope to the Adjudicating Authority to exercise his discretion, albeit judiciously, for imposition of penalty. 8. Now, after hearing the Ld. counsel for the respondents, we find the following points for imposition of penalty on the lower side: - - There is nothing on record that respondents have received any advance export incentive before exporting the consignment. - There is nothing on record that the export was bogus or consignments were of inferior quality, which resulted in stoppage of export dues. - Invoices were raised by the respondent company in respect of the aforesaid consignments and the same were accepted by the two aforesaid foreign companies without raising any protest or demur or objection or complaint. - All documents were sent through the respondent no.1's bank to respective banks of the importers on usance terms and were released to the said buyers against their acceptance. - Respondents sent many requests and reminders to the said two impo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
