1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FERA APPEAL NO.66 OF 2007 Union of India & Anr. ..Appellants. V/s. M/s. Yespee & Ors. ..Respondents. Mr. R.V. Desai, senior Advocate with A.S. Rao & Mrs. S.V. Bhaucha for appellants. Mr. L.S. Shetty for respondents. CORAM : V.C.DAGA AND J.P.DEVADHAR, JJ. DATED : 6TH NOVEMBER, 2009. P.C. :- 1. Heard learned senior counsel for the appellant. The appeal is filed to challenge the order dated 10th October, 2003. This appeal was admitted on 19/10/2007 on the following substantial question of law:- “ Whether it is open to the Court / Tribunal if the exporter has failed to bring in the foreign currency within the time set out by the R.B.I. to hold that there is contravention of the provisions ? “ 2. The factual matrix of the appeal reveals that permission was granted in favour of the respondents to export goods and to receive the sale proceeds thereof within the stipulated period which was extended 2 from time to time. It, ultimately, expired on 30th May, 1995. The sale proceeds were not received till the date of expiry period with the result, a show cause notice was issued to the respondents alleging contravention of provisions of section 18(2) and 18(3) of the Foreign Exchange Regulation Act, 1973, which was replied by the respondent. The adjudicating authority after hearing the appellant was pleased to confirm the said notice and imposed penalty in the sum of Rs.4,50,000/-. 3. Not being satisfied with the aforesaid order, the appeal was carried by the respondents before the Appellate Tribunal for Foreign Exchange, New Delhi ('the tribunal' for short) being Appeal No. ADJ/ 116/B/SDE/PKA/97 which was decided by the impugned order, wherein the appellate authority was pleased to observed as under:- “ On a close scrutiny of the materials on record, it is clear that in the written submissions made on 1-8-1996, the appellants had narrated the situation which led to the delay in shipment and also the resultant delay in the realization of the sale proceeds and also regarding their submissions to M/s. Vijaya Bank, the authorized dealer, seeking for the extension from the RBI. Referring to the impugned orders, the counsel for the appellants canvassed in arguments that the appellants had applied to the RBI for extension of time from time to time and so was the time extended upto 30-5-1995. It is clear from the records that though the sale proceeds outstanding in the 12 invoices could not be realized within the stipulated time, the exporters had taken reasonable efforts as expected of a reasonable man and so was the entire amount realized during the pendency of the adjudication 3 proceedings. The impugned orders reveal that though the appellant firm had conveyed to their bankers the receipt of the remittance of US $ 33200 and of 3,500 they had failed to furnish copies of FIRCs against which the above payments were received and there was no confirmation from the exporter's bank regarding receipt of such payments. But as rightly submitted by the Counsel for the appellants in view of the receipt of the entire sale proceeds pending the proceedings, the adjudicating authority would have duly considered the circumstances under which the shipment was held and the realization also was hurdled. As rightly submitted on behalf of the appellants, the entire sale proceeds under the 12 invoices in question having been realized though beyond the stipulated time, the realization was in consequence to the efforts taken by the exporter; it is pertinent to note that the appellants had taken all reasonable efforts for the realization of the export dues and so was the entire dues were realized. As such the impugned findings of the adjudicating authority that the firm and its partners were guilty of contravention of section 18(2) and (3) is, therefore, unsustainable and is set aside. " (Emphasis supplied) 4. Not satisfied with the aforesaid order, the Revenue is before us in the present appeal. 5. Mr. Desai, learned senior counsel appearing on behalf of the appellant placed reliance on sections 18(2) and 18(3) of the FERA to contend that during the extended period the respondent failed to realize the proceeds of the exported goods and consequently, breach of section 18(1) & 18(2) of FERA was complete. He placed reliance on the 4 judgments of the Supreme Court in the case of Seema Silk and Sarees V/s. Directorate of Enforcement reported in 2008 (226) E.L.T. 673 (S.C.) and Bharat Carpets V/s. Director, Enforcement Directorate reported in 2008 (228) E.L.T. 3 (S.C.) in support of his submission. 6. Per contra, learned counsel for the respondents tried to support the impugned order. CONSIDERATION 7. Having heard rival contentions, so far as the first judgment sought to be relied on is concerned, it has upheld the validity of section 18 of FERA. The said judgment is not relevant for the purpose of deciding this appeal since the validity of the provisions is not a subject matter of challenge. So far as the second judgment is concerned, it is not applicable to the facts of the present case. In the present case, the sale proceeds were received during the pendency of the adjudication proceeding, and whereas in the cited judgment they were not at all received by the exporter. In the case in hand, the tribunal has recorded a categorical finding of fact (which is not under challenge) that the entire amount was realized during the pendency of the adjudication proceedings. If one goes through section 18(3) of the FERA, it raises a rebuttable presumption. If the sale proceeds of the exported goods are received beyond the period prescribed, then, one has to presume that the efforts made by the exporter must have resulted in realization of the 5 sale proceeds. Any receipt of the amount beyond the extended period is sufficient to rebut the presumption that there is no failure on the part of the exporter in realising sale proceeds of the exported goods. The very same view is taken by the Tribunal while setting aside the order-in- original whereunder penalty was imposed. 8. In our considered opinion, the view taken by the Tribunal is a reasonable and possible view based on finding of fact after appreciating available material on record with which no fault can be found. We see no merit in the appeal. In the result, the appeal is liable to be dismissed with no order as to costs. Order accordingly. (J.P.DEVADHAR, J.) (V.C.DAGA, J.)