Sarvesh Chandra, Chairman - This appeal together with application for waiver of pre-deposit has been filed against Adjudication Order No. ADJ. 229-B/SDE/PKA/96, dated 20-12-1996 under which a penalty of Rs. seven lakhs has been imposed on Shri Mohan S. Sadhwani the partner of the appellant firm. The allegations on which the appellants have been found guilty of contravention of sections 18(2) and 18(3) read with section 68(1) of the Foreign Exchange Regulation Act, 1973 (âThe Act), respec-tively, are that they failed to receive in India the full value of exports (aggregating to US $. 47224.62) made under the cover of 5 GRI forms as listed in the Annexure to the show-cause notice dated 14-2-1996. 2. Pleading waiver of pre-deposit Shri Rakesh Sharma, the learned Counsel for the appellant submitted that the appellants application for writing off was already pending active consideration of the Reserve Bank of India when the adjudication proceedings were initiated and evidence to that effect was produced before the learned Adjudicating Officer. He submitted that RBI has since granted write off of the total outstanding amount of US$. 47224.62 and, therefore, on face of it the appellants cannot be held guilty of contravention as held by the learned Adjudicating Officer. In the circumstances, we decided to waive the requirement of pre-deposit and proceed to hear the parties on merits. This order disposes of the appeal on merits. 3. Before proceeding to consider the finding of contravention, we would like to observe at the outset that the impugned order suffers from the error in law inasmuch as the penalty of Rupees seven lakhs has been imposed on the firm Krishna Exports inspite of the fact that the appellant had informed the adjudicating authority during the hearing on 23-4-1996 that the said partnership-firm got dissolved with the death of the other partner and he had become sole proprietor of the firms business. On 29-4-1996 he sent a copy of the Death Certificate of the deceased partner and his last will to show that the appellant had become the sole proprietor of the business of the firm. In the circumstances, the penalty, if any, ought to have been imposed only on the appellant Shri S. Mohan Sadhwani and not on the firm Krishna Exports which no more existed at the time of imposition of penalty. Strictly speaking, the penalty of Rs. 70,000 on the appellant Mohan S. Sadhwani also suffers from legal infirmity inasmuch as penalty has been imposed, in his capacity as the partner of Krishna Exports, apparently by invoking the provisions of section 68(1) of the Act as shown in the SCN, though at the relevant time he was the sole proprietor of the business. We need say no more on this point as the appellants cannot be held guilty of contravention also for the reasons hereinafter stated. 4. We would now proceed to examine the finding of contravention of section 18(2) read with 18(3) on the part of the appellants. Section 18(2), inter alia, provides that where any export of goods, to which a notification under clause (a) of sub-section (1) applies, has been made, no person shall, except with the permission of the RBI, do or refrain from doing anything or take or refrain from taking any action which has the effect of securing that payment for the goods is delayed beyond the period prescribed under clause (a) of sub-section (1). Thus, in order to bring home the charge under section 18(2) it is necessary for the department to prove that payment for the goods exported has not been received within the prescribed period due to any act or omission of the exporter which has the effect of securing the non-receipt of the payment. It is also to be established that there is no permission of the Reserve Bank for non-receipt of the export proceeds. In view of these essential ingredients of the charge under section 18(2) it cannot be determined, where any application for writing off is pending consideration of the RBI, as to whether the non-realisation is with or without the permission of the RBI. This Board in several cases has already held that where an application for waiver is pending consideration of the RBI, the proceedings under section 51 of the Act are premature. Apparently, the learned Adjudicating Officer is aware of the legal position for he has gone into the question, under para 3 of the impugned order, as to whether the RBI has accorded their permission for write off. He came to the conclusion that RBI has not acceded to the request of the appellant for write off for the reason that in response to the letter of the appellant bank recommending the appellants case for write off to RBI, the RBI called for certain particulars/documents from the Manager of the bank. The bank furnished those details to the RBI and the RBI in turn raised some further queries which were also replied by the bank. It is difficult to comprehend as to how from these correspondence, can it be concluded, as has been done by the learned Adjudicating Officer, that the RBI has not acceded to the request for write off. It is not disputed that the appellant had produced the letters of the bank of Maharashtra, the appellants bank, through whom alone, according to the prescribed procedure an application for write off is to be made to the RBI. In view thereof, we find it difficult to uphold the conclusion made by the learned Adjudicating Officer, namely, that âin absence of any confirmation from RBI that it was considering appellants request for write off of export proceedings it just cannot be concluded that such a request was pending with itâ. The correspondence of bank of Maharashtra with RBI in respect of the appellants application is adequate proof that the RBI was considering the application. The fact that appellants bank, which is the concerned authorised dealer, had recommended the application, by itself would be sufficient justification for waiting the decision of the RBI. In fact the necessity of such approach is amply demonstrated by the illustration of this case itself because the RBI has since granted write off in favour of the appellants in respect of the total outstanding amount of export proceeds. Now, since the RBI has allowed the write off, the question of any contravention of section 18(2) does not arise and the finding of contravention is liable to be set aside as also the penalties imposed there for. 5. In view of the above, the appeal is allowed and the impugned order is set aside.