P L D 2011 Karachi 109 (PLP)

GULZAR AHMED, J.

By these appeals, the appellant has challenged the judgment dated 15-6-2009 passed by Adjudicating Officer Foreign Exchange Adjudicating Court of State Bank of Pakistan, by which the appellant was found to have committed offence under section 12(1) of Foreign Exchange Regulation Act, 1947 read with section 23-B(4) of the said Act and imposed penalty of Rs.9,123,345 on the appellant for immediate payment.

2. Mr. Faisal Shehzad Malik, learned counsel for the appellant has contended that appellant has made export of dry dates to India on 28-1-2003 and has submitted shipment documents to his bank for availing the finance and for the reason that there was stand-off position between Pakistan and India and their borders were sealed, all business relationships between Pakistan and India have ceased and for this reason the remittance of shipment of exported goods was not effected by the importer in India to the appellant in Pakistan. Learned counsel, however, contended that the appellant has visited India to resolve the problem but did not succeed. He, however, admitted that no evidence was led by the appellant to show that there was stand-off state between Pakistan and India and that their borders were sealed and there was hostility between two countries. He further admitted the fact that there is no notification issued either by Indian Government or Government of Pakistan regarding ceasing of business between two countries. He further admitted the fact that appellant had not made any complaint to any of the authority for non-repatriation of fund by the importer nor appellant had lodged claim against the importer for payment of exported goods.

3. Mr. Masood Anwar Ausaf, learned counsel for State Bank of Pakistan has supported the impugned judgment and has relied upon the case of Muhammad Younus v. State Bank of Pakistan and another (2003 CLD 1129).

4. Mr. Amir Malik, learned counsel for Muslim Commercial Bank has contended that in respect of export of goods by the appellant, the appellant has obtained finance facility from the said bank which the appellant has failed to pay and suit filed by the bank was decreed against which appellant has filed appeal which is pending in High Court at Sukkur Bench. He has also supported the impugned judgment.

5. We have considered the submissions made by learned counsel for the parties and have gone through the record.

6. There is no dispute with regard to the fact of export of goods by the appellant to the importer in India and the proceeds of export have not been repatriated to Pakistan. The contention of counsel for the appellant of stand-off sealing of border and ceasing of business between Pakistan and India is not supported by evidence or material on the record rather this fact seems to be negated by the very assertion made by the appellant in Ground No. 6 of memo. of appeals that he personally went to India to resolve the matter. The fact of appellant personally going to India shows that neither the border was sealed nor there was any ceasing of business and that the Pakistani citizen was travelling to India.

7. Admittedly, the appellant has furnished Form-E which is a declaration in terms of section 12(1) of the Foreign Exchange Regulations Act, 1947 in which he has undertaken to have the proceeds of export repatriated within six months from the date of shipment. The shipment was made and within six months the export proceeds were not repatriated making the appellant liable for action under section 23-B(4).

8. In the case of Muhammad Younus (supra) which is a Division Bench judgment of this Court it is observed as follows: "The petitioners as required by section 12(1) gave an undertaking on Form "E" that they shall deliver to the bank to whom the said form was submitted, the Foreign Exchange proceeds of the goods exported within four months from the date of the shipment/despatch. It was a simple and straightforward promise made by the petitioners to do a certain act i.e. to deliver the value of the exported goods in Foreign Exchange to the bank. The fulfilment of the promise of delivery of Foreign Exchange is a unilateral act. To prove the contravention of the undertaking, it is not necessary for SBP to prove any complicity of the petitioners with any other person. The failure to fulfil the undertaking, which is not denied, by itself is a clear-cut proof of the contravention of the promise. The provisions of section 24(2), FER Act are not applicable to the circumstances of this case. The argument advanced by the learned counsel is misconceived and is accordingly rejected. In view of the above discussion, we have no doubt in our minds that the petitioners contravened the provisions of section 12(1), FER Act and were rightly proceeded against and penalized under section 23(B), FER Act, 1947. After going through the record of the cases and in view of the clear provisions of the law, we are of the opinion that the Constitution petitions filed and the pleas, taken therein by the petitioners are mala fide; consequently, all the petitions are dismissed with costs."

9. After hearing the learned counsel for the parties today, by a short order these appeals were dismissed, above are the reasons for the same. A.R.K./A-126/K Appeals dismissed.