SURINDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) PRESENT writ petition has been filed seeking quashing of the show cause notice dated 27th February, 2001 as well as the adjudication order dated 23rd December, 2004 primarily on the ground that Sections 18(2) and 18(3) of the Foreign Exchange Regulation Act, 1973 (in short, FERA) as well as Section 49 (4) of the Foreign Exchange Management Act, 1999 (in short, FEMA) are unconstitutional and void.

(2.) BRIEFLY stated the relevant facts of the present case are that in the year 1991-1992, the petitioner exported goods worth Rs. 70,70,164/- to M/s. Pinky Original Inc., New York. However, as the foreign purchaser became bankrupt, it did not repatriate the sale proceeds to the On 27th February, 2001, Deputy Director, Enforcement petitioner. Directorate, issued a Show Cause notice to the petitioner alleging violation of Sections 18(2) and 18(3) of FERA. Though in reply to the said Show Cause notice the petitioner sought waiver of repatriation of export proceeds yet the Enforcement Directorate vide its adjudication order dated 23rd December, 2004 imposed a penalty of Rs. 70 lacs.

(3.) MR. Mathews J. Nedumpara, learned counsel for the petitioner submits that the maxim lex neminem cogit ad vana seu inutilia peragenda ? the law does not require anyone to do vain or useless things ? is the moot point. He further submits that the aforesaid Sections require that every exporter, without fail to repatriate/realize every penny of proceeds of exports of goods, commodities or services. Learned counsel for the petitioner submits that shortfall of even one rupee leads to a presumption that the exporter has not taken all reasonable steps for repatriation and as a consequence both adjudication proceedings and penal prosecution normally follow and the burden of proof is entirely on the exporter.