Rajasthan Udhyog v. Assistant Director (Enforcement) Agr.
2011-01-18
VINEET KOTHARI
body2011
DigiLaw.ai
JUDGMENT Hon'ble KOTHARI, J.—These appeals have been filed under Section 35 of the Foreign Exchange Management Act, 1999 which repealed and substituted earlier enachment; Foreign Exchange Regulation Act, 1973, by the appellant- Company and its Directors being aggrieved by the order passed by the Appellate Tribunal for Foreign Exchange, New Delhi dismissing the appeals No. 380-385/1997 and upholding the order passed by the Assistant Director of Enforcement Directorate, Agra dtd. 11.8.1997 in the proceedings under Section 51 of the Foreign Exchange Regulation Act, 1973. 2. The provisions for filing appeal under Section 35 of the present Act of 1999 as well as Section 54 of the earlier Act of 1973 are pari materia and provides for appeal to the High Court against the order of the Tribunal on a question of law arising out of such order. 3. The brief facts giving rise to the present appeal are that the appellant company made export under two Bills of Export covered under GR No. AE 551862. dtd. 4.2.1994 for US $ 17930 and AF 746129 dtd. 29.12.1994 for US $ 4200 and pending realization of the foreign exchange against such export of goods by the appellant- exporter on account of lapse of prescribed period of 6 months before which, such export proceeds in foreign exchange was required to be realized by the appellant-company as per section 18 of the FERA Act, 1973, the Assistant Director of Enforcement initiated proceedings under Section 18(2) and 18(3) read with sections 50 and 56 of the Act for imposition of penalty and initiation of prosecution against the present appellants. After giving show cause notice in this regard to the appellants dtd. 17.3.1997 and after the appellants filed reply thereto on 4.1.1998, after affording an opportunity of hearing to the appellants, the Assistant Director by the impugned order dtd. 11.8.1997 imposed penalty of Rs. 1,00,000/- on the appellant No. 1 -Exporter company and Rs. 10,000 on each of the five Directors of the appellant Company. The appeals filed by the appellants before the Appellate Tribunal also come to be rejected by the Tribunal vide impugned order dtd. 16.2.2004. Aggrieved by the same, the appellants have preferred these appeals before this Court. 4. Mr. L.R. Mehta, Mr. Vikas Balia and Mr.
10,000 on each of the five Directors of the appellant Company. The appeals filed by the appellants before the Appellate Tribunal also come to be rejected by the Tribunal vide impugned order dtd. 16.2.2004. Aggrieved by the same, the appellants have preferred these appeals before this Court. 4. Mr. L.R. Mehta, Mr. Vikas Balia and Mr. Ramit Mehta, learned counsel appearing for the appellants submitted that both the authorities below, namely, Adjudicating Authority as well as the Appellate Tribunal have filed to appreciate that the appellants made all fair, sincere and vigorous efforts for realization of the export proceeds in foreign exchange and not only one out of two aforesaid export bills was fully realized, around 40% of the proceeds of the second bill was also realized by the appellants and against the bill amount of GR No. AE 551862 dtd. 4.2.1994 for US $ 17930/-, the appellant realized US $ 5400 in the first instance on 3.11.1995 and US $ 1000 when one of the Directors of the appellant-Company also made a personal visit to Dubai for this realization only and thus, remittance of US dollar 1000 by demand draft was secured by the appellant on 17.8.1997 vide letter dtd. 17.8.1997 of the importer M/s Buamim Granite and Marble Trading, Dubai. They also urged that the appellants had impeccable track record of making huge exports and earning valuable foreign exchange for the country and pointing out the figures of past 4 years, the learned counsels for the appellant urged that 100% recovery of foreign exchange was made in respect of all these exports except the short recovery of foreign exchange for the aforesaid one export Bill dtd. 4.12.1994, for which despite best efforts made by the appellants, they could not realize the remaining amount from the importer. The learned counsels for the appellants further submitted that the appellants even applied to the RBI for seeking permission in this regard as required under Section 18(2) of the Act. However, such application was filed belatedly on 11.7.1997 and upon being re-directed by the RBI vide letter dtd. 8.8.1997 to the State Bank of India, which was authorized dealer of foreign exchange under the said Act, the appellants even applied to the SBI vide their letter dtd.
However, such application was filed belatedly on 11.7.1997 and upon being re-directed by the RBI vide letter dtd. 8.8.1997 to the State Bank of India, which was authorized dealer of foreign exchange under the said Act, the appellants even applied to the SBI vide their letter dtd. 9.8.1997 to permit them to write off unrealized amount against the said export as per para 6 C 14(d), (vi) of the Export Control Manual, 1993. However, the SBI did not respond nor permitted write off of said bad debt, therefore, no further action could be taken by the appellants in this regard. They, however, submitted that throughout, the appellants had made sincere and bona fide efforts for recovery of the entire amount under the said export transaction, but they could realize approximately 40% of the amount and therefore, the presumption of the offence alleged to have been committed by them under Section 18(2) of the Act stood rebutted by them. However, the authorities below ignoring all these factual aspects of the matter have taken a strict view of the matter and imposed penalty in question which was also paid by the appellants under protest during the pendency of appeals before the Appellate Tribunal but the authorities of the Department also initiated prosecution against the appellants which was stayed by the stay orders of this Court in the present appeals on 1.6.2004. The learned counsel for the appellants in support of their contentions relied upon the following judgments which will be discussed hereinafter: "1. Commissioner of C. Ex. Chandigarh vs. Pepsi Foods Ltd. (2010) 260 E.L.T. 481 (SC). 2. Escorts Ltd. vs. Foreign Exchange Regulation Appellate Board (1984) 1 Comp. L.J. 250 (Del). 3. Allana Sons (Pvt.) Ltd. vs. Foreign Exchange Regulation Appellate Board and Ors. (1994) 4 Comp. L.J. 440 (Bom.). 5. On the other hand, the learned counsel for the respondents, Mr. Lokesh Mathur for Mr.
Chandigarh vs. Pepsi Foods Ltd. (2010) 260 E.L.T. 481 (SC). 2. Escorts Ltd. vs. Foreign Exchange Regulation Appellate Board (1984) 1 Comp. L.J. 250 (Del). 3. Allana Sons (Pvt.) Ltd. vs. Foreign Exchange Regulation Appellate Board and Ors. (1994) 4 Comp. L.J. 440 (Bom.). 5. On the other hand, the learned counsel for the respondents, Mr. Lokesh Mathur for Mr. V.K. Mathur, standing counsel vehemently submitted that the appellants having failed to seek permission of Reserve Bank of India within the stipulated time frame of six months, without which they could neither take, nor refrain from doing anything which resulted in non-repatriation of the valuable foreign exchange or even short realization of export value, the appellants are clearly liable for penalty and prosecution under the relevant provisions and the adjudicating authority as well as the Tribunal cannot be said to have erred in imposing the penalty in question and also initiating the prosecution against the appellants. He also urged that the Additional Director had already taken a lenient view of the matter while imposing lesser amount of penalty then the amount prescribed in section 50 of the Act of 1973 and the same was upheld by the Tribunal, which does not call for any interference by this Court in the present appeals. He also submitted that the correspondences showing the efforts made by the appellants in realization of the export revenue are mostly from the side of the importer/buyer. The appellants have not taken enough steps for full realization of valuable foreign currency against the export made by them. He, therefore, prayed for dismissal of the appeals relying upon the following judgments in support of his contentions: 1. M/s. Samuer and Co. vs. Exchange Regulation Appellate Board- AIR 1980 Madras 176. 2. Director of Enforcement vs. M/s. MCTM Corporation Pvt. Ltd. AIR 1996 SC 1100 . 3. Sree Meenakshi Mills Ltd., Madurai vs. Commissioner of Income Tax- AIR 1957 SC 49 . 6. Before coming to the contentions raised by the learned counsel for the both the sides and analysis of the case laws relied upon by them, it is considered expedient to first have a look at the relevant provisions of Foreign Exchange Regulation Act, 1973.
Sree Meenakshi Mills Ltd., Madurai vs. Commissioner of Income Tax- AIR 1957 SC 49 . 6. Before coming to the contentions raised by the learned counsel for the both the sides and analysis of the case laws relied upon by them, it is considered expedient to first have a look at the relevant provisions of Foreign Exchange Regulation Act, 1973. The relevant provisions contained in Section 18, 50 and 56 of the said Act are reproduced hereinbelow for ready reference: "Payment for exported goods (1)(a) The Central Government may, by notification in the Official Gazette, prohibit the taking or sending out by land, sea or air (hereafter in this section referred to as export) of all goods or of any goods or class of goods specified in the notification from India directly or indirectly to any place so specified unless the exporter furnishes to the prescribed authority a declaration in the prescribed form supported by such evidence as may be prescribed or so specified and true in all material particulars which, among others, shall include the amount representing- (i) the full export value of the goods; or (ii) if the full export value of the goods is not ascertainable at the time of export the value which the exporter, having regard to the prevailing market conditions, expects to receive on the sale of the goods in the overseas market, and affirms in the said declaration that the full export value of the goods (whether ascertainable at the time of export or not) has been, or will within the prescribed period be, paid in the prescribed manner.
(b) If the Central Government is of opinion that it is necessary or expedient in the public interest so to do, it may, be notification in the Official Gazette specify any goods, from among those goods to which a notification under clause (a) applies, and direct that in respect of the goods so specified, where an exporter makes a declaration under sub-clause (ii) of clause (a) of the value which he, having regard to the prevailing market conditions expects to receive on the sale of such goods in the overseas market, he shall not, except with the permission of the Reserve Bank on an application made to the Reserve Bank by the exporter in this behalf, authorise or permit or allow or in any manner be a party to, the sale of such goods for a value less than that declared. Provided that no permission shall be refused by the Reserve Bank under this clause unless the exporter has been given a reasonable opportunity for making a representation in the matter: Provided further that where the exporter makes an application to the Reserve Bank for permission under this clause and the Reserve Bank does not, within a period of twenty days from the date of receipt of the application communicate to the exporter that permission applied for has been refused, it shall be presumed that the Reserve Bank has granted such permission. Explanation.-In computing the period of twenty days for the purposes of the second proviso, the period, if any, taken by the Reserve Bank for giving an opportunity to the exporter for making a representation under the first proviso shall be excluded.
Explanation.-In computing the period of twenty days for the purposes of the second proviso, the period, if any, taken by the Reserve Bank for giving an opportunity to the exporter for making a representation under the first proviso shall be excluded. (2) Where any export of goods to which a notification under clause (a) of sub-section (1) applies, has been made, no person shall, except with the permission of the Reserve Bank, do or refrain from doing anything, or take or refrain from taking any action, which has the effect of securing- (A) in ca case falling under sub-clause (i) or sub-clause (ii) of clause (a) of subsection (1),- (a) that payment for the goods- (i) is made otherwise than in the prescribed manner, or (ii) is delayed beyond the period prescribed under clause (a) of subsection (1), or (b) that the proceeds of sale of the goods exported do not represent the full export value of the goods subject to such deductions, if any, as may be allowed by the Reserve Bank; and (B) in a case falling under sub-clause (ii) of clause (a) of sub-section (1), also that the sale of the goods is delayed to an extent which is unreasonable having regard to the ordinary course of trade: Provided that no proceedings in respect of any contravention of the provisions of this sub-section shall be instituted unless the prescribed period has expired and payment for the goods representing the full export value has not been made in the prescribed manner within the prescribed period. (3) Where in relation to any goods to which a notification under clause (a) of subsection (1) applies the prescribed period has expired and payment therefor has not been made as aforesaid, it shall be presumed, unless the contrary is proved by the person who has sold or is entitled to sell the goods or to procure the sale thereof, that such person has not taken all reasonable steps to receive or recover the payment for the goods as aforesaid and he shall accordingly be presumed to have contravened the provisions of sub-section (2).
(4) Where in relation to any goods to which a notification under clause (a) of sub-section (1) applies the prescribed period has expired and payment therefor has not been made as aforesaid, the Reserve Bank may give to any person who has sold the goods or who is entitled to sell the goods or procure the sale thereof, such directions as appear to it to be expedient for the purpose of securing- (i) if the goods have been sold, the payment therefor, or (ii) if the goods have not been sold, either the sale of the goods and payment therefor as aforesaid, or the re-import of the goods into India as the circumstances permit, within such period as the Reserve Bank may specify in this behalf and without prejudice to the generality of the foregoing provisions, may direct that the goods, the right to receive the payment therefor or any other right to enforce such payment shall be transferred or assigned to the Central Government or to a person specified in the directions. (5) Where any goods or a right to receive payment or any other right to enforce such payment, are not is transferred or assigned in accordance with sub-section (4), the Central Government shall pay to the person transferring or assigning the same, the amount recovered by or on behalf of the Central Government in respect of the goods, after deducting all costs, charges and expenses incurred by the Central Government in selling the goods or in recovering or realing the amount in respect of such goods.
(6) Without prejudice to the provisions of sub-section (1), where the value of the goods specified in the declaration furnished under that sub-section is less than the amount which in the opinion of the Reserve Bank, in a case falling under sub-clause (i) of clause (a) of that sub-section, represents the full export value of those goods, or in a case falling under sub-clause (ii) of that clause, the value which the exporter can, having regard to the prevailing market conditions, expect to receive on the sale of the goods in the over as market, the Reserve Bank may issue on order requiring the person holding the shipping documents to retain possession thereof until such time as the exporter of the goods has made arrangements for the Reserve Bank or a person authorised by the Reserve Bank to receive on behalf of the exporter payment in the prescribed manner of an amount which in the opinion of the Reserve Bank represents the full export value of such goods or the value which the exporter, having regard to the prevailing market conditions, can be expected to receive on the sale of the goods in the overseas market. (7) For the purpose of ensuring compliance with the provisions of this section and any order or direction made thereunder, the Reserve Bank or the prescribed authority referred to in sub-section(1) may require any person making any export of goods to which a notification under clause (a) of that sub-section applies to exhibit contracts with his foreign buyer or other evidence to show that the full export value of the goods, or, as the case may be, the value which the exporter having regard to the prevailing market conditions, expects to receive on the sale of the goods in the overseas market, has been, or will within the prescribed period, be paid in the prescribed manner.
(8) Without prejudice to the provisions of sub-section (1), where the Reserve Bank has permitted any authorised dealer to accept for negotiation or collection of shipping documents covering exports from his constituent [not being a person who has signed the declaration in terms of sub-section (1)], such authorised dealer shall, before accepting such documents for negotiation or collection, require the constituent concerned also to sign such declaration and thereupon such constituent shall be bound to comply with such requisition and the original declarant and such constituent signing the declaration shall each be considered to be the exporter for the purposes of this section, and shall be governed by the provisions thereof accordingly.
(9) Without prejudice to the provisions of sub-section (1), in relation to export of goods to which a notification under clause (a) of that sub-section applies, the Reserve Bank may, for the purpose of ensuring that the full export value of the goods or, as the case may be, the value which the exporter, having regard to the prevailing market conditions, expects to receive on the sale of the goods in the overseas market, is received in proper time or without delay, by general or special order direct from time to time, that in respect of export of goods to any destination or any class of export transactions or any class of goods or class of exporters, the exporter shall, prior to the export of the goods, comply with any or all of the following conditions as may be specified in the order namely:- (a) that any contract or other arrangement for the sale of the goods shall be registered in such manner and with such authority or organisation as may be specified in the order; (b) that the payment for the goods is covered by an irrevocable letter of credit or by such other arrangement or document as may be specified in the order; (c) that a copy of the declaration to be furnished to the prescribed authority under sub-section (1) shall be submitted to such authority or organisation as may be specified in the order for certifying that the value of the goods specified in such declaration represents the proper value thereof; (d) that any declaration to be furnished to the prescribed authority under subsection (1) shall be submitted to the Reserve Bank for its prior approval, which may, having regard to the circumstances, be given or withheld or may be given subject to such conditions as the Reserve Bank may deem fit to impose: Provided that no approval shall be withheld by the Reserve Bank under this clause unless the exporter has been given a reasonable opportunity for making a representation in the matter.
(10) Where the Central Government is of opinion that, in respect of any goods or class of goods or class of exporters, or in respect of export to any destination, the practice of exporting goods in accordance with any term to the effect that the goods will be sold on account of the exporter and the account of such sales rendered to the exporter has resulted or is likely to result in the full export value of the goods not being brought into India in the prescribed manner or within the prescribed period, it may, be general or special order, prohibit the export, in accordance with such term, of such goods or class of goods or by such exporters or to such destination. Penalty:- 50. If any person contravenes any of the provisions of this Act [other than section 13, clause (a) of sub-section (1) of section 18, section 18A and clause (a) of sub-section (1) of section 19] or of any rule, direction or order made thereunder, he shall be liable to such penalty not exceeding five times the amount or value involved in any such contravention or five thousand rupees, whichever is more as may be adjudged by the Director of Enforcement or any other officer of Enforcement not below the rank of an Assistant Director of Enforcement specially empowered in this behalf by order of the Central Government (in either case hereinafter referred to as the adjudicating officer). Offences and prosecutions 56.
Offences and prosecutions 56. (1) Without prejudice to any award of penalty by the adjudicating officer under this Act, if any person contravenes any of the provisions of this Act [other than section 13, clause (a) of sub-section (1) of section 18, section 18A), clause (a) of sub-section (1) of section 19, sub-section (2) of section 44 and sections 57 and 58], or of any rule, direction or order made thereunder he shall, upon conviction by a court, be punishable,- (i) in the case of an offence the amount or value involved in which exceeds one lakh of rupees, with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine: Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months; (ii) in any other case, with imprisonment for a term which may extend to three years or with fine or with both. (2) If any person convicted of an offence under this Act [not being an offence under section 13 or clause (a) or sub-section (1) of section 18 or section 18A) or clause (a) of sub-section (1) of section 19 or sub-section (2) of section 44 or section 57 or section 58] is again convicted of an offence under this Act [not being an offence under section 13 or clause (a) of sub-section (1) of [section 18 or section 18A] or clause (a) of sub-section (1) of section 19 or sub-section (2) of section 44 or section 57 or section 58], he shall be punishable for the second and for every subsequent offence with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine: Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.
(3) Where a person having been convicted of an offence under this Act, [not being an offence under section 13 or clause (a) of sub-section (1) of section 18 or section 18A] or clause (a) of sub-section (1) of section 19 or sub-section (2) of section 44 or section 57 or section 58], is again convicted of offence under this Act [not being an offence under Section 13 or clause (a) of sub-section (1 of [section 18 or section 18A] or clause (a) of sub-section (1) of section 19 or sub-section (2) of section 44 or section 57 or section 58], the court by which such person is convicted may, in addition to any sentence which may be imposed on him under this section, by order direct that person shall not carry on such business as the court may specify, being a business which is likely to facilitate the commission of such offence for such period not exceeding three years, as may be specified by the court in the order. (4) For the purposes of sub-sections (1) and (2), the following shall not be considered as adequate and special reasons for awarding a sentence of imprisonment for a term of less than six months, namely:- (i) the fact that the accused has been convicted for the first time of an offence under this Act; (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods in relation to such proceedings have been ordered to be confiscated or any other penal action has been taken against him for the same offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party in the commission of the offence; (iv) the age of the accused. (5) For the purposes of sub-secs. (1) and (2), the fact that an offence under this Act has caused no substantial harm to the general public or to any individual shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than six months. (6) Nothing in the proviso to section 188 of the Code of Criminal Procedure, 1973 (2 of 1974)] shall apply to any offence punishable under this section." 7. Mr.
(6) Nothing in the proviso to section 188 of the Code of Criminal Procedure, 1973 (2 of 1974)] shall apply to any offence punishable under this section." 7. Mr. L.R. Mehta, learned counsel appearing for the appellants drawing the attention of the Courts towards the various correspondences made between the parties and the present appellants, RBI and its authorized dealer SBI, which documents form part of the memo of appeals filed by the appellants before the Foreign Exchange Regulation Appellate Board submitted that presumption of committal (3) of Section 18 of the Act, since these documents clearly establish that the appellants had taken all reasonable steps with due diligence and constant follow up to recover the full amount against the export made by it under this particular Bill and only one such bill out of large number of export consignments sent by them to various countries remained short realized, which is subject matter to present appeal. They urged that in the given circumstances, the legal action against importer to recover the balance amount would have been far more costly and commercially imprudent. The learned counsel for the appellants urged that the appellants have impeccable and good record of export revenue earning for the country and therefore, the reasonable steps taken by it for realization of the export revenue even for the present disputed bill should be viewed in that light and presumption of offence should be taken to have been rebutted by the appellants and consequently imposition of penalty and complaint of prosecution deserves to be quashed and set aside. He submitted that adjudicating authority as well as the appellate Tribunal have not adverted to these materials viz. correspondences and documents sufficiently and they therefore, erred in holding that the appellants were guilty of said offence of short recovery of export revenue. Drawing the attention of the Court towards the letter dtd. 27.10.1994 of the purchasing company M/s. Buamim Granite and Marble Trading, Dubai the learned counsel for the appellants submitted that the body of the said letter clearly says "referring to your various faxes and telexes, we would like to inform you that we will be settling the bill for US $ 17930/- before 3rd of November, 1994". Subsequently letter dtd.
27.10.1994 of the purchasing company M/s. Buamim Granite and Marble Trading, Dubai the learned counsel for the appellants submitted that the body of the said letter clearly says "referring to your various faxes and telexes, we would like to inform you that we will be settling the bill for US $ 17930/- before 3rd of November, 1994". Subsequently letter dtd. 22.1.1995 of the same Company again referred to "with reference to your faxes and telephonic conversations we regret very much that due to heavy loss in our business, we could not settle your bills in time for which we apologise. We will settle all your bills without fail as we are expecting some payments by the end of this month." Again by letter dtd. 30.4.1995 while remitting a demand draft for US $ 12999/- for other bill No. 460 PRO 519, the said Company while apologizing for delay in settling other bills, again requested the appellant-Company to bear with them till they settle other bills also. Fax message dtd. 8.5.1995 sent by the appellant-Company to the purchasing company also shows that the appellant-Company sent reminder about invoice No. 460 PRO 516 dtd. 7.2.1994 for US $ 17930 and asked the purchasing company to let them know exact date on which payment would be sent so that the details may be submitted to the Reserve Bank of India. The letter dtd. 16.8.1995 of M/s. Buamim Granite and Marble Trading again stated that "we will be settling the bill by the ends of this month as we are expecting some payments/settlement against our bills." Thereafter vide letter dtd. 3.11.1995, the purchasing Company sent a demand draft of US $ 5400/- against the disputed bill of US $ 17930/-. 8. The said record further shows that the appellant- Company vide its letter dtd. 23.2.1996 wrote to the Chief Enforcement Officer giving all the aforesaid details and requesting them to allow them further time of one month to realize the remaining amount also and also to condone the delay in applying to RBI for extension of time. The reminder of the appellate-company dtd. 11.6.1997 to the purchasing company M/s. Buamim Granite and Marble Trading further shows that they made constant efforts made for realization of the balance amount also. Ultimately, it appears that one of the Directors of the Appellant-company, namely, Mr.
The reminder of the appellate-company dtd. 11.6.1997 to the purchasing company M/s. Buamim Granite and Marble Trading further shows that they made constant efforts made for realization of the balance amount also. Ultimately, it appears that one of the Directors of the Appellant-company, namely, Mr. A.K. Agarwal personally visited Dubai; business place of purchasing company and further realized a sum of US $ 1000/- on 12/13.7.1997 when Mr. A.K. Agarwal visited Dubai Resting with these correspondences, the appellant-Company appears to have applied to the Assistant General Manager of Export control Department of Reserve Bank of India through Assistant General Manager, State Bank of India, Main Branch, Forex Department, Jodhpur on 11.7.1997 seeking its permission to write off the remaining unrealized export bill amount out of said bill of US $ 17930/- under Regulation 6C (14) of Export Control Manual. The next reminder to the Assistant General Manager of the State Bank of India, Jodhpur authorized dealer of RBI for foreign exchange to the same effect is dated 9.8.1997. It appears that the appellant- Company did not receive any response from the Reserve Bank of India and the State Bank of India and therefore, the matter rested there. It is in these circumstances that the appellants contested their liability against the imposition of penalty and initiation of prosecution proceedings. 9. The Bombay High Court in the case of Allana Sons (Pvt.) Ltd. vs. Foreign Exchange Regulation Appellate Board reported in (1994) 4 Comp. LJ 440 (Bom.) held that if events occur which are beyond the ordinary control of the party and despite diligence or bona fides, the exporter would not have been able to secure payment within the specified period, there would be no contravention of section 18(2) of the FERA. Relevant portion of the said judgment is produced hereunder: "25. In the facts and circumstances which have been narrated by us in detail and which facts are not in dispute and to some extent, the finding of the FERA Board also indicates that in fact the appellants despite due diligence were helpless in the matter, the events have taken place in an in foreseen manner and quite contrary to normal practice and as found by the Appellate Board, the appellants were the victims of actions of certain third parties. 26.
26. This has obvious reference to the telex messages exchanged between the BFDC and the Shipping Corporation of India as well as the Shipping Corporation of India and the local agent of the Meka Trading Co. The contravention of section 18(2) of the FERA would have occurred only for some volition on the part of the exporter in either doing or refraining from doing an act or either taking or refraining from taking an action. Obviously, therefore, from the phraseology as obtaining in section 18(2), the main part would indicate not only volition, but some deliberate action or a deliberate act of refraining from taking any steps which results in securing one of the two modes of payment, i.e., either not in accordance with the prescribed manner or being delayed beyond the prescribed period under clause (a). But, if events occur which are beyond the ordinary control of the party and which despite diligence or bona fides the exporter would not have been able to secure payment within the specified period, in our opinion, there would be no contravention of section 18(2) of the FERA. The present circumstances appear to indicate a helpless situation and a helpless party where we cannot visualise any contravention of section 18(2) of the FERA. At any rate, even assuming that there was a presumption that the appellants have failed to secure the payment within the prescribed time, the said presumption is rebuttable and the facts on record clearly show that the appellants have taken all reasonable steps to realise and recover payments and not only that, they had filed a civil suit long before the Department even thought of show-cause proceedings. This is, therefore, not a case where the party can be branded as guilty of contravention of section 18(2). The documents of the transaction, the conditions of transfer and, in particular, the instructions that under the said bill of lading the cargo of Allana Sons was to be delivered to the order of the Bank of Sadarat Iran, Iranshahr, Snomali Branch, and the party to be notified was Meka Trading Co., shows that the exporters had taken all necessary precautions for realising the foreign exchange in the value of the goods through banking channels.
It is only because of the action of the third parties which have immobilised them from proceeding further in recovering the foreign exchange directly that they have been constrained to file civil suit for damages against the BFDC and the Shipping Corporation of India. 27. In the result, therefore, the impugned judgment of the Appellate Board and that of the adjudicating authority will have to be quashed and set aside. Proceedings on the show cause notice will have to be dropped and are ordered accordingly. 28. Appeals allowed. There shall be no order as to costs. Penalty amount, if paid, be refunded to the respective appellants." 10. Delhi High Court in the case of Escorts Ltd. vs. Foreign Exchange Regulation Appellate Board (1984) 1 Comp. LJ 250 (Del) holding that where the exporter had taken all steps reasonably practicable under the circumstances to make the best of the bargain and it would have been disastrous if they were to re-import the goods, held that there was no mens rea on the part of the exporter and under such circumstances, no penalty under Section 12 (2) of the earlier enactment, namely, Foreign Exchange Regulation Act, 1947 could be imposed on the exporter. The relevant extract of the said judgment from the head note of the reports is reproduced hereunder for ready reference: "The appellant company is engaged in the business, inter alia, of readymade garments. In the relevant year, it exported readymade goods to a buyer in New York. By a letter, the buyer raised disputes regarding quality of the goods exported and the late supply. It proposed to pay 50% of the price without prejudice to its rights or a reference of the disputes to the arbitrator or appointment of an independent investigator such as Counsel General of India in New York for checking its records and verifying the accuracy of the statements made by it. After some correspondence, the buyer agreed to pay 50% of the price with condition that for the balance of the amount the company would have to seek arbitration. The permission of the Reserve Bank of India was sought and was accorded. The matter was later put to arbitration, consequent to which there was short realisation of the export proceeds. The appellants were alleged to have contravened the provisions of section 10(1) and 12(2) of the Foreign Exchange Regulation Act, 1947.
The permission of the Reserve Bank of India was sought and was accorded. The matter was later put to arbitration, consequent to which there was short realisation of the export proceeds. The appellants were alleged to have contravened the provisions of section 10(1) and 12(2) of the Foreign Exchange Regulation Act, 1947. It had been found that there was no evidence regarding the poor quality of goods etc., which had indicated that the appellants were not anxious to realise the balance amount thereby permitting the buyer to retain the balance amount. It was, however, fond that the appellants had taken all steps reasonably practicable under the circumstances to make the best our of the bargain. It would have been disastrous if they were to re-import the goods. there was no mens rea. Held The Foreign Exchange Regulation Act, 1947, is designed to safeguard and conserve foreign exchange which is essential to the economic life of a developing country. To achieve this object, it prohibits certain positive and negative acts. Any person contravening these provisions is liable to penalty under Section 23 of the Act. What is prohibited by the provisions contained in sections 10(1) and 12(2) of the Act? These provisions prohibits, inter alia, doing or refraining from doing an act, without the permission of the Reserve Bank of India, which results in the short realisation of the foreign exchange. On facts, there being no mens rea the negative act of the appellants had not the effect of securing that the foreign exchange ceased in part to be recoverable by them. Agreeing to accept the proposal of the buyer and thus realising more than 95% of the value of the consignment and that too with the prior approval of the Reserve Bank of India, though accorded without prejudice to the action, if any, that may be taken against the appellants, had not the effect of securing short realisation of the part of the foreign exchange. Their action, on the other hand, had the effect of saving much of the foreign exchange which was required to be spent for getting the dispute settled by arbitration. In such circumstances, the ingredients of sections 10(1) and 12 (2) of the Foreign Exchange Regulation Act, 1947, have not been made out. Consequently, it cannot be said that the appellants contravened any of the said provisions." 11.
In such circumstances, the ingredients of sections 10(1) and 12 (2) of the Foreign Exchange Regulation Act, 1947, have not been made out. Consequently, it cannot be said that the appellants contravened any of the said provisions." 11. Recently, the Hon'ble Supreme Court in the case of Commissioner of C. Ex., Chandigarh vs. Pepsi Foods Ltd. - 2010 (260) ELT 481 (SC) while dealing with the case under Section 11 AC of the Central Excise Act for attracting penalty provision under Section 11 AC of the Act, held that criminal intent or mens rea is necessary constituent and while finding that there were no fraud or suppression or mis-statement as alleged by the Revenue against the assessee, the adjudication order for imposition of penalty under Section 11 AC of the Act was quashed. The relevant extract of the said judgment from para 18 to 24 is reproduced hereunder: "18. In the instant case in the order-in-original a penalty has been imposed which is equal to the amount of duty. Such penalty has been imposed in exercise of power under Section 11 AC of the Act. Section 11 AC of the Act as it stood at the relevant point of time runs as under: "11 AC. Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (2) of Section 11 A, shall also be liable to pay a penalty equal to the duty so determined. Provided that where the duty determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, for the purposes of this section, the duty as reduced or increased, as the case may be, shall be taken into account." 19. From a perusal of the aforesaid section, especially the underlined portion, it is clear that in order to attract the penalty provision under Section 11 AC, criminal intent to 'mens rea' is a necessary constituent.
From a perusal of the aforesaid section, especially the underlined portion, it is clear that in order to attract the penalty provision under Section 11 AC, criminal intent to 'mens rea' is a necessary constituent. In the reply to the show cause notice the stand which has been taken by the respondent is that it has been paying the duty and there is no mala fide intention on its part to evade the payment of duty. The further stand is that the goods were cleared from the factory only on payment of duty. This stand which has been taken in the reply to the show cause notices was not found to be incorrect in the order-in-original. As such the imposition of penalty of the equal amount of duty under the order in original cannot be sustained. 20. It is well settled that when the statues create an offence and an ingredient of the offence is a deliberate attempt to evade duty either by fraud or misrepresentation, the statute requires 'mens rea' as a necessary constituent of such an offence. But when factually no fraud or suppression or misstatement is alleged by the revenue against the respondent in the show cause notice the imposition of penalty under Section 11 AC is wholly impermissible. 21. The Court in this connection may remind itself of the fundamental principle "that an accused person cannot be convicted without proof of mens rea, unless from a consideration of the terms of the statute and other relevant circumstances it clearly appears that must have been the intention of Parliament". [See the decision of the House of Lords in Vane vs. Yiannopoullos, (1964) 3 All ER 820, and the opinion of Lord Reid at page 823.] 22. In Vane (supra) the word `knowingly' was used in the statute as a condition of creating liability. 23. The aforesaid dictum of Lord Reid has been followed by this Court also. A reference in this connection may be made to the decision in Union of India vs. Rajasthan Spinning & Weaving Mills reported in 2009 (238) ELT 3 (SC). This Court considering Section 11 AC of the Act held in para 19 at Page 12 of the report as follows: "19.
A reference in this connection may be made to the decision in Union of India vs. Rajasthan Spinning & Weaving Mills reported in 2009 (238) ELT 3 (SC). This Court considering Section 11 AC of the Act held in para 19 at Page 12 of the report as follows: "19. From the aforesaid discussion it is clear that penalty under Section 11 AC, as the word suggests, is punishment for an act of deliberate deception by the assessee with the intent to evade duty by adopting any of the means mentioned in the section." 24. Following the aforesaid well settled principles, this Court quashes that part of the order-in-original which imposes penalty without any finding of fraud or mis-statement against the respondent. This part of the order in original is quashed. Save as aforesaid, the order in original is upheld. These appeals filed by the revenue are allowed to the extent indicated above. No costs." 12. On the other hand, in the case of Samuel and Co. vs. Exchange Regulation Appellate Board - AIR 1980 Madras 176 which is relied upon by the learned counsel for the Revenue, where the exporter did not obtain any permission from the RBI as required under Section 12(2) of the earlier Act, the Madras High Court proceeded to hold that it could not be said that non-obtaining of such permission from the Reserve Bank of India is a mere technicality and such technical breach of provision need not call for imposition of penalty under Section 12(2) of the Act. The relevant extract in para 6 and 7 as relied upon by the learned counsel for the Revenue is reproduced hereunder for ready reference: "6. ..As already stated, Section 12(2) proceeds on the basis that doing or refraining from doing anything which has got the result of non-repatriation of the full export sale proceeds with the permission of the Reserve Bank will not be a contravention of that Section, in this case, though the appellant has come forward with some explanation as to why it transferred its branch at Singapore along with all its outstandings it has not attempted to give any explanation as to why the Reserve Bank was not approached for its permission as contemplated in Section 12(2).
(7) The learned counsel for the appellant would however say that the non-obtaining of permission of the Reserve Bank is mere technicality and such a technical breach of the provision need not call for imposition of penalty under Section 12(2). We are not inclined to agree with the learned counsel that it is only a technical breach of Section 12(2). The requirement of getting permission from the Reserve Bank of India before doing or refraining from doing anything as a result of which the export sale proceeds could not be repatriated is not a mere idle formality. That requirement has been introduced in the Section obviously with a view to have a check and verification of the claim made by the person seeking the permission. Once a permission of the Reserve Bank is sought for as contemplated by Section 12(2) the Reserve Bank will take up the follow up measures to find out whether doing or refraining from doing any act by the person who seeks permission is genuine and bona fide or whether it is intended only to get over the obligations he had undertaken by giving the necessary declaration in the G.R. 1 forms. But by not applying for the permission of the Reserve Bank the appellant has made it impossible for verification of facts asserted by it then and there." This case is distinguishable from the facts of the present case because as aforesaid, in the present case, the appellants have made constant, sincere and bona fide efforts for realization of the export revenue and the fact that they realized almost 40% of the export bill of US $ 17930/-, namely, US $ 6400/-, but unfortunately could not realize the full amount, clearly shows that the appellants were making constant efforts for such realization and therefore, they had discharged their burden for rebuttal of presumption as stipulated in section 18(2) of the Act. The appellants here had also applied to RBI/SBI, though belatedly, but in the absence of any time frame for making such application and RBI/SBI having not responded in the matter, the appellants cannot be penalized for the same. 13.
The appellants here had also applied to RBI/SBI, though belatedly, but in the absence of any time frame for making such application and RBI/SBI having not responded in the matter, the appellants cannot be penalized for the same. 13. In the case of Director of Enforcement vs. M/s MCTM Corporation (supra) relied upon by the learned counsel for Revenue, the Hon'ble Supreme Court held as under: "For establishing contravention of sub-section (1) of Section 10 it is not necessary to establish that the defaulter has disobeyed any directions issued by the Reserve Bank of India under Section 10(2) with regard to the repatriation of the foreign exchange receivable by him in India. Sub-section (2) is attracted after the contravention of sub-section (1) is established meaning thereby that contravention of sub-section (1) is a distinct offence, independent of the breach which may be committed subsequently by disobedience of any order or direction issued under sub-section (2) and the violation of the directions issued under sub-section (2) is not necessary to complete the commission of an offence under sub-section (1) of Section 10. Decision of Madras High Court, dtd. 9.3.1988, Reversed. Where any person who has a right to receive in foreign exchange or its payment in rupees in India fails to get the foreign exchange, receivable in India, repatriated, within a reasonable time after the right to receive the same accrues the commission of the offence under sub-section (1) of Section 10 is complete. What is "reasonable time" would depend upon the facts and circumstances of each case and it is neither possible nor desirable to lay down any general formula in that behalf. Where the delay in repatriation is not unreasonable no contravention of Section 10(1)(a) can be said to have been committed. Section 10(1)(a), enacts a contravention punishable under Section 23(1) of FERA, 1947. Section 10(2) enacts a distinct and separate contravention flowing from disobedience of an order or directions issued by the Reserve Bank of India to the person who has already committed a contravention under Section 10(1). The said decision is also of little avail to the Revenue in the present case as the Hon'ble Supreme Court in the aforesaid case has clearly found that breach under Section 10(1) of the Act was complete and could be tried even if there is no mens rea on the part of the exporter.
The said decision is also of little avail to the Revenue in the present case as the Hon'ble Supreme Court in the aforesaid case has clearly found that breach under Section 10(1) of the Act was complete and could be tried even if there is no mens rea on the part of the exporter. However, it may be pointed out that no such question of reasonable or bona fide steps taken by the exporter for realization of the export amount were discussed in the said judgment and therefore, the Hon'ble Apex Court held that the proceedings under Section 23(1) of the Act are adjudicatory in nature and are not criminal proceedings and therefore, it could not be accepted that merely because penalty clause exists in Section 23(1)(a), the nature of proceedings under that Section is changed from adjudicatory to criminal prosecution. Thus, this judgment is also distinguishable from the facts of the present case. 14. The decision of the Hon'ble Apex Court in the case of Sree Meenakshi Mills Ltd. vs. Commissioner of Income Tax- AIR 1957 SC 49 on the question of appeals being maintainable only on a question of law before this Court is also of little help because if the authorities below have imposed penalty and initiated prosecution proceedings as has been done in the present case without adverting to the relevant material and evidence before them, such findings would be rendered perverse and the question of law would definitely arise even as per the judgment relied upon by the learned counsel for the Revenue in the aforesaid case. 15. In the considered opinion of this Court, in the present case, the appellant-Company and its Directors took all reasonable and bona fide steps throughout the period after making export to the purchasing Company of Dubai for realization of the entire amount and letters, correspondences and documents placed on record before the Tribunal as well as before the adjudicating authority as discussed above, clearly establish that not even an iota of lapse or delinquency can be inferred on the part of the appellants in pursuing the recovery of export realization from the purchasing Company of Dubai.
The fact that besides the correspondences, telexes, faxes and telephonic conversation by the appellants, one of the Directors of the appellant-Company himself visited the business place of the purchasing company at Dubai and thus, 40% of the export bill in question could be realized. If despite such best efforts, a part of export bill could not be realized the conduct of the appellants cannot be said to be blameworthy at all. The fact of short realization was simply beyond their control and in such circumstances, in the opinion of this Court, the provisions relating to penalty and prosecution cannot be applied to the appellants at all. Section 18(3) which raises presumption of such offence clearly stipulates that unless contrary is proved by the person who has sold goods that such person has not taken all reasonable steps to receive or recover the payment for the goods as aforesaid, he shall be presumed to have contravened the provisions of Sub-section (2). This exception of rebuttal against presumption of offence clearly stands rebutted in the present case. The delay in applying to Reserve Bank of India in the present case cannot be fatal as no such time limit is prescribed under the provisions of Section 18 itself as to at what point of time, the exporter is expected to apply to RBI or its authorized dealer State Bank of India. The fact that the appellant-company in the present case applied to the RBI/SBI in the year 1997 narrating all the facts and efforts made by it for realizing and prayed to such authorities to either write off the unrealized amount under Section 6C of the Export Manual, clearly shows the bona fides of the appellants and the fact remains that such letters/representations have remained unresponded by the competent authority in RBI/SBI. No blame can be laid at the doors of the appellants for that. Sub-section (4) of Section 18, which empowers the Reserve Bank of India to even get unrealized amount assigned to Central Government or to a person specified therein shows that such Banking institutions could have made efforts to recover the unrealized balance amount or could have got unrealized amount assigned to them, shows that further efforts for realization could be made by the Government authorities but no such action appears to have been taken by the authorities of RBI/SBI in the present case even though the appellants approached them.
16. The imposition of penalty of Rs. 10,000/- on each of the five Directors of the appellant No. 1 Company by the adjudicating authority with the vague finding that, "it is not clear as to who amongst the directors was the incharge and responsible for the affairs of the company so far as this export is concerned, I hold all the Directors guilty in terms of Section 68(1) of the Foreign Exchange Regulation Act, 1973 and impose a nominal penalty of Rs. 10,000/- (Rupees ten thousand only) each on all the five Directors"; is also illegal and unjustified because all the Directors cannot be saddled with the penalty by one sweep unless there are specific averment in the complaint against the particular Director being responsible for realization of the Foreign Exchange in question. Reliance in this regard can be placed on the decision of Hon'ble the Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla & Anr., reported in 2005 Crl. L.J. 4140 = RLW 2005(4) SC 2386, in para 20 of which while dealing with liability under Section 141 of the Negotiable Instrument Act, 1881 of the Directors of company the Apex Court has held as under: "It is necessary to specifically aver in a complaint under S. 141 that at the time the offence was committed, the person accused was in charge of and responsible for the conduct of business of the company. This averment is an essential requirement of S. 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of S. 141 cannot be said to be satisfied. Merely being a Director of a company is not sufficient to make the person liable under S. 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for conduct of its business. The requirement of S. 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as fact as there is no deemed liability of a Director in such cases." 17.
The requirement of S. 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as fact as there is no deemed liability of a Director in such cases." 17. Then following this judgment and earlier judgment of Apex Court in the case of Ajay Bagaria vs. Union of India & Anr., reported in 2008(103) DRJ 324 = MANU/DE/0818/2008 the Delhi High Court in para 19 held as under: "19. Following the judgment of the Supreme Court in Girdhari Lal Gupta, reported in (1971) 3 SCC 189 , it is clear that a complaint under Section 68 FERA read with 18(2) thereof would have to contain some specific averment as regards each of the Directors before making them liable particularly where the filing of the complaint has been preceded by a notice to which a reply has been received from the Director concerned. At the bare minimum it would have to comprise the two mandatory elements as explained by the Supreme Court in Neeta Bhalla (supra). In the instant case, the averment in the complaint when read as a whole does not satisfy the requirement of the law in this regard as far as the petitioner is concerned." 18. In these circumstances, this Court is of the view that imposition of penalty on the appellants as well as initiation of prosecution proceedings was not called for and the authorities below have erred and taking a pedantic view of the matter and saddled the appellants with penalty and prosecution. 19. Therefore, the present appeals filed by the appellants deserve to be allowed and the same are accordingly allowed and the orders passed by the both the authorities below are quashed and set aside and the amount of penalty deposited by the appellants be refunded back to them with simple interest @ 6% p.a. from the date of deposit till the date of refund and the complaints filed by the Additional Director for prosecution of the appellants under Section 56 of the Act are also quashed and set aside. No order as to costs.