AMARWATI EXPORTS PVT LTD Vs. U O I

JUDGEMENT

(1.) This writ petition has been filed by the petitioner aggrieved by the order dated 3rd March, 2905 where by the Appellate Tribunal for Foreign Exchange, while hearing an application seeking waiver of condition of predeposit of the penalty as a pre-condition for entertainment of the appeal, directed the petitioner no.1 to make a pre-deposit of 30% of the amount of penalty within 45 days and other petitioners were directed to make deposit of the full amount of penalty within 45 days falling which it was directed that the appeal would stand dismissed.

(2.) It appears that the Adjudicating Authority passed an order on 11th August, 2004 imposing a penalty of Rs. 3,40,000/- on the petitioner no.l and Rs. 50,000/- each on the petitioner nos.2 to 5. The writ petitioners are stated to be suffering from financial difficulty and hence it has been pleaded on their behalf in the appeal preferred against the order made by the Adjudicating Authority that there may be dispensation of the pre-deposit requirement.

(3.) Learned counsel appearing for the petitioners submits that the petitioners had a good prima facie case in as much as non- recovery of dues from foreign buyers by itself is not sufficient to impose penalty. However, the Adjudicating Authority would be empowered in imposing a liability upon an exporter if no effort has been made to realise the amount. Perusal of the order dated 11th August, 2004 shows that the adjudicating authority arrived at a conclusion that the petitioners had made efforts to realise the amount and two directors namely Mukesh Sukhani (petitioner no. 3) and Mr. S.K. Daga (petitioner no. 5) had even gone to London in November, 1993 to settle the matter but the matter could not be settled and the company suffered heavy losses. It is also pointed out that the Reserve Bank of India had taken these factors into consideration and had allowed four of the goods receipts to be written off.