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G.E. Lighting (India) (P.) Ltd. Vs. Directorate of Enforcement - Court Judgment

LegalCrystal Citation
CourtAppellate Tribunal for foreign Exchange New Delhi
Decided On
Case NumberAPPEAL NO. 729 OF 2004
Judge
AppellantG.E. Lighting (India) (P.) Ltd.
RespondentDirectorate of Enforcement
Advocates:Anshu Mahajan for the Appellant. T.K Gadoo for the Respondent.
Excerpt:
foreign exchange regulation act, 1973 - section 8 - comparative citation: 2006 (68) scl 270 (atffe - new delhi).....mahajan, the appellant has imported goods spending the acquired foreign exchange and has also filed proof in the nature of bill of entry before the authorized banker. thereafter, the question of violation of the provisions of section 8(3) cannot arise and the adjudication order is required to set aside and quashed. per contra, shri t.k gadoo, dla, argued that the bill of entry is filed after 9 months from the date of acquisition of the foreign exchange. from this, it is quite clear that bill of entry has not been filed within 3 months as described in para 7a.20 (chapter-7) of the exchange of control manual. hence, the appellant had been, in these circumstances, negligent in filing the proof of import of goods. therefore, the adjudication order is required to be sustained and.....
Judgment:

O.P. Nahar, Chairperson. - By virtue of this appeal, the appellant has challenged Adjudication Order No. ADJ/159/B/SDE/KNR/2004/4423, dated 26-5-2004 passed by Special Director, Enforcement Directorate, imposing a penalty of Rs. 44,42,600 for contravention of the provisions of section 8(3) read with section 8(4) Foreign Exchange Regulation Act, 1973, on the reasons that the appellant after obtaining remittance of foreign exchange equivalent to Rs. 44,42,600 for the purposes of importing goods failed to use such foreign exchange for import of goods and file proof thereof. This Tribunal by order dated 4-10-2004 directed the appellant when appellant was neither present nor represented, to make pre-deposit of 20 per cent of the amount of penalty within 60 days from the date of receipt of the order. Against this order, the appellant approached Honble High Court of Delhi where this Tribunals order is set aside and matter is remanded back for fresh disposal of the application for waiver of the pre-deposit.

2. The appellant has filed additional papers which are taken on record. Amongst these additional papers, copy of the letter dated 25-6-2004 from Union Bank of India is available where it is stated that bill of entry in respect of remittance in question is filed on 25-6-2004. Looking towards this aspect of the matter, this Tribunal has taken up this appeal for final disposal on merits.

3. As stated above, the authorized banker has said in its letter dated 25-6-2004 that Bill of Entry as proof of import of the goods against impugned remittance of foreign exchange is filed. The language so far relevant of this letter is reproduced below—

“In this connection, we have to inform you that M/s. G.E. Apar Lighting Pvt. Ltd. have submitted the Bill of Entry in respect of remittance of Rs. 44,42,600 dated 16-4-1995 under our reference No. PAD 884, on 25-6-2006.”

4. According to Learned Counsel Shri Anshu Mahajan, the appellant has imported goods spending the acquired foreign exchange and has also filed proof in the nature of Bill of Entry before the authorized banker. Thereafter, the question of violation of the provisions of section 8(3) cannot arise and the adjudication order is required to set aside and quashed. Per contra, Shri T.K Gadoo, DLA, argued that the Bill of Entry is filed after 9 months from the date of acquisition of the foreign exchange. From this, it is quite clear that Bill of Entry has not been filed within 3 months as described in Para 7A.20 (Chapter-7) of the Exchange of Control Manual. Hence, the appellant had been, in these circumstances, negligent in filing the proof of import of goods. Therefore, the adjudication order is required to be sustained and maintained.

5. Admittedly, the goods were imported against the acquired foreign exchange equal to Rs. 44,42,600 and proof thereof is filed before authorized banker though beyond 3 months. The provisions of section 8(3) Foreign Exchange Regulation Act, 1973, do not prescribe in any manner the period of filing the proof of import of the goods but only obliges the receiver of foreign exchange to spend the foreign currency in import of the goods for which he has acquired foreign exchange. The Para 7A.20 (Chapter-7) of the Exchange of Control Manual though states about filing of Bill of Entry and exchange control copy but does not create any sanction if Bill of Entry or exchange control copy is filed late. Rather, this Para states that authorized banker will remind the importer on non-filing after 3 months. In this factual position, it is not possible to agree that late filing of proof of import of goods will become punishable with a penalty. Hence, the arguments advanced by Shri T.K. Gadoo, DLA, do not contain merit and are required to be rejected.

6. The appellant has spent the foreign exchange in import of the goods and has also filed proof of such import before the authorized banker though after expiry of some time. Therefore, this appeal contains merit and adjudication order is required to be set aside and quashed because it does not withstand legal scrutiny. The adjudication order is quashed. This appeal is allowed.


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