Document Fragment View

Matching Fragments

4. The respondent filed counter and the learned Senior Panel Counsel appearing for the respondent submitted that FEMA, 1999 itself is a complete code within itself by providing various statutory appeals for any person aggrieved on the order passed by the adjudicating authority as well as the order passed by the appellate authority. As per Sections 17 and 19 of FEMA, 1999, any aggrieved person on the order passed by the adjudicating authority shall file appeal before the Special Director and before the Appellate Tribunal respectively. As per Section 35 of FEMA, 1999, filing of further appeal by the aggrieved person before the jurisdictional High Court is also envisaged in the Act itself. Therefore, the order passed by the respondent is appealable under Section 19 of FEMA and the writ petition is not maintainable without exhausting the appeal remedy under Section 19 before the Appellate Authority. Entertaining this writ petition would defeat the provisions of the Statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fees or deposit of some amount of penalty or fulfilment of some other conditions for entertaining the appeal. https://www.mhc.tn.gov.in/judis 4.1 He further submitted that in respect of 8 outstanding export bills negotiated through Canara Bank, Chennai, neither had those eight bills been realised nor had the bills been written off nor had any extension been granted for realisation of those outstanding 8 bills. The noticees had not submitted any documentary evidence during the personal hearing in spite of sufficient opportunity provided. In respect of 13 outstanding export bills, negotiated through City Bank, Chennai those 13 bills neither been realised nor had the bills been written off nor had any extension been granted for realisation of those outstanding 13 bills. The petitioners failed to submit any documentary evidence before the adjudicating authority with regards to taking steps to realise the outstanding export proceeds. In respect of 16 outstanding export bills, negotiated through Axis Bank Mylapore, Chennai, neither had those 16 bills been realised nor had the bills been written off nor had any extension been granted for realisation of those outstanding 16 bills. The authorised person is duty bound to act in accordance with the directions of the Reserve Bank of India and it is the duty of the bank to disclose the https://www.mhc.tn.gov.in/judis action taken on the representation for write off to the exporter in time. As per the Master Circular on Export of Goods and Services issued by the Reserve Bank of India, exporters are allowed to write off outstanding export dues only if the aggregate value of such export bills written off and bills extended for realisation does not exceed 10% of the export proceeds due during the calender year and such export bills are not a subject of investigation by the respondent.

4.3 He further submitted that as per Regulation 15 of Regulations, 'provided that omission of the Reserve Bank to give directions shall not have the effect of absolving the person committing the contravention from the consequences thereof, where in relation to goods or software export of which is requited to be declared on the specified form, the specified period has expired and the payment thereof has not been made as aforesaid, Reserve Bank may give to any person who has sold the goods or software or who is entitled to sell the goods or software or procure the sale thereof, such directions as appear to it be expedient for the purpose of securing-(a) the payment therefor if the goods or software has been sold and b) the sale of goods and payment https://www.mhc.tn.gov.in/judis thereof, if goods or software has not been sold or re-import thereof into India as the circumstances permit, within such period as the Reserve Bank may specify in this behalf. Further, Regulation 9 mandates that full export value should be realised and repatriated to India within 12 months from the date of the export. Regulation 13 specifies that no person do or refrain anything or take refrain from taking any action which has the effect of securing that the payment of goods is delayed or they do not represent the full export value of the goods or the payment of goods is made otherwise than in the specified manner. Insofar as the petitioner is concerned, the payment of goods exported under 37 invoices were not realised and it is in violation of the aforesaid Regulations. Export bills remained outstanding during the adjudication proceedings and the regulations framed under Section 7 of FEMA puts the entire onus on the exporter to realise export value of the goods exported.