1999 (4) TMI 580 - AT - FEMA

Summary

Issues Involved:
1. Retrospective application of Chapter VA of the NDPS Act.
2. Jurisdiction of the competent authority.
3. Adequacy of opportunity provided to the appellants to present their case.
4. Validity of the evidence and documents submitted by the appellants.

Detailed Analysis:

1. Retrospective Application of Chapter VA of the NDPS Act:
The appellants contended that Chapter VA of the NDPS Act, which came into effect on May 29, 1989, should not apply to convictions that occurred before this date. They argued that the provisions are prospective and not retrospective, citing the absence of explicit retroactivity in section 68J of the Act. The Tribunal, however, interpreted the use of the past tense "who has been convicted" in clause (a) of section 68A(2) as an indication that Parliament intended the provisions to apply retrospectively. The Tribunal emphasized that every word in a statute must be given meaning, and the use of past tense clearly includes those convicted before the enactment of Chapter VA. The Tribunal also referred to the proviso in section 68C(2) to illustrate that Parliament explicitly limited the operation of Chapter VA where necessary, reinforcing the retrospective application of section 68A(2).

2. Jurisdiction of the Competent Authority:
The appellants argued that the competent authority, Shri Bandyopadhyay, lacked jurisdiction as he was not specifically named in the notification dated July 24, 1997. The Tribunal dismissed this argument, stating that the notification under section 68D does not require naming a specific individual. It suffices that any authorized officer, such as a Collector of Customs, Collector of Central Excise, or Commissioner of Income-tax, can perform the functions of the competent authority.

3. Adequacy of Opportunity Provided to the Appellants:
The appellants claimed they were not given sufficient opportunity to present their case. The Tribunal noted that a notice under section 68H(1) was issued on November 24, 1997, and the appellants responded on December 26, 1997. The hearing was initially scheduled for January 6, 1998, and adjourned to February 15, 1998, at the appellants' request. The Tribunal concluded that the appellants had ample opportunity to present their case and the competent authority considered all materials on record before making a decision.

4. Validity of the Evidence and Documents Submitted by the Appellants:
The appellants failed to produce substantial evidence to support their claims. They did not provide bank account details, books of account, or any orders from customers to substantiate their income from job works. The income-tax assessments under section 143(1) were deemed insufficient without corroborative evidence. The Tribunal upheld the competent authority's rejection of the appellants' claim that documents were seized by the police, as no receipt or panchnama was produced. The Tribunal also refused to consider additional documents submitted without a formal petition. In the absence of evidence as required by section 8 of the SAFEMA, the Tribunal confirmed the competent authority's decision that the properties were illegally acquired.

Conclusion:
The appeal was dismissed, with the Tribunal affirming the competent authority's findings and the forfeiture of the properties under section 68-I(3) of the NDPS Act.