Devatha Exports vs Dy. Dir., Enforcement Directorate

N. Kumar, J.—The appellants have preferred this appeal challenging the concurrent findings recorded by the two authorities holding that the appellants have failed to establish that they have taken any steps during the prescribed period to recover the money due from the supplier to whom they had exported the goods. A reading of the order passed by the Original Authority as well as the Appellate authority clearly show that they have recorded a finding that the appellant has contravened Sections 18(2) & 18(3) of the Foreign Exchange Regulation Act, 1973 and though the appellant has contended that he had taken effective steps to realize the outstanding export proceeds, the appellant has failed to bring on record any material to show that such steps were taken.

The learned counsel for the appellants submits that they had produced documents to show that steps were taken. Without referring to the said documents, the original authority passed the impugned order. They had filed review petition enclosing all the documents. Unfortunately, no orders are passed on the review petition. The appellants preferred an appeal. The Appellate Tribunal also proceeded on the footing that the appellant has failed to bring on record any material showing the steps taken by them within the prescribed period. The counsel for the appellants submits that before the Appellate Tribunal the documents were produced. When once the documents were produced, at least, along with the review petition we are inclined to believe that the appellant had produced the documents before the Appellate Tribunal. The presumption that flows from Section 18(2) of the Act is a rebuttable presumption. When the appellant has produced documents to rebut the presumption the authorities should have recorded a finding whether the presumption is rebutted or not by looking into the documents. Both the authorities have not looked into the documents produced by the appellant and applied their mind. On the contrary, the authorities have proceeded on the footing that no documents were produced which is not correct. Therefore, the impugned order cannot be sustained in law. We deem it proper to set aside the orders and remand the matter to the original authority so that the documents produced by the appellants are considered and appropriate orders are passed in accordance with law. Hence, we pass the following order:

"(a) Appeal is allowed.

(b) The orders passed by the Appellate Tribunal as well as the Original Authority are hereby set aside.

(c) The matter is remitted to the original authority.

(d) The appellant to produce one more set of documents before the original authority. After going through said documents and after hearing the appellants, the original authority shall pass orders on merits and in accordance with law.

(e) Ordered accordingly."