Bela M. Trivedi, J. - (1.) THE appellant -Company has filed the present appeal under Sec. 54 of the erstwhile Foreign Exchange Regulation Act, 1973 read with Section 35 of Foreign Exchange Management Act, 1999 (hereinafter referred to as 'the Act') challenging the order dt. 28.10.2003 passed by Member of Appellate Tribunal for Foreign Exchange, New Delhi (hereinafter referred to as 'the Tribunal') in appeal No. 241/2002, arising out of the order dt. 27.09.1994 passed by the Asstt. Director, Enforcement Directorate, New Delhi, in Adjudication order No. 206 -209/Adj/94 -AD (RKP) -8878 -8882. In brief the facts of the case are that the appellant was a partnership firm registered under the Partnership Act. During the year 1982, appellant had exported carpets to M/s. Norik, the Agency, New York (who were buying agents for M/s. Oriental Rugs, New York) to the tune of Rs. 2,49,568.22 under cover of 2 GR forms. After taking the original ECGC policy and on the length of the same, the bank (authorized dealer) credited appellant's bank account for the export value of goods. According to the appellant, despite making serious efforts, the foreign buyer did not make the payment in time. It was further case of the appellant that the bank thereafter informed that the original foreign buyer had sold the exported goods to two firms at USA i.e. (i) Pritasha Imports Inc. and (ii) Prem Chaturvedi & Co., who in turn took the responsibility for making the payments. For the above reasons, four memorandums were issued by the respondent No. 3 Deputy/Asstt. Director of Enforcement, New Delhi to the appellant and its partners alleging contravention of the provisions contained in Sections 9(1)(c), 9(1)(e), 9(1)(b) and Secs. 18(2) & 18(3) read with Section 68(1) of FERA. The respondent No. 3 vide the order dt. 27.09.1994 imposed the penalty to the tune of Rs. 5,000/ -, Rs. 50,000/ -, Rs. 10,000/ - and Rs. 12,000/ - respectively and in all Rs. 77,000/ - on the appellant -firm and its partners in respect of the said memorandums. The said order having been challenged by the appellant before the Tribunal, the Tribunal confirmed the same vide the impugned order 28.10.2003.
(2.) IT has been sought to be submitted by the learned counsel for the appellant that both the authorities below had passed the impugned orders overlooking the factual and legal aspects, inasmuch as though the appellant had made serious efforts to realize the export value of the goods from the Foreign buyer, the penalty was imposed upon the appellant. According to him, a civil suit was also filed against M/s. Prem Chaturvedi and Co. and though the said suit was decreed in favour of the appellant, the decreetal amount could not be realized. Learned counsel for the appellant also referred to the various provisions contained in the Act to contend that appellant was not liable to pay any penalty. On the other hand, learned counsel for the respondents supporting the impugned orders, has placed reliance on the decision of Apex Court in the case of Bharat Carpets vs. Director, Enforcement Directorate, : (2008) 8 SCC 142, for raising presumption under Sec. 18(3) of the Act as the appellant had failed to show that reasonable steps were taken by it to realize the amount of export value of goods from Foreign buyer.
(3.) HAVING regard to the submissions made by the learned counsels for the parties and having gone through the impugned orders passed by respondents, it appears that the appellant had failed to show that serious efforts were made by it with regard to the realization of the amount of export value of goods from the foreign buyers. At this juncture, the rebuttable legal presumption contained in Section 18(3) of the said Act is required to be reproduced, which reads as under: 18. Payment for exported goods. - (1) ...... (2) ...... (3) 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 therefore 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).;