1995 (12) TMI 438 - AT - FEMA

Summary

Issues:
1. Allegations of contravention of section 9(1)(a) of the Foreign Exchange Regulation Act, 1973 in Appeal No. 273/95.
2. Allegations of contravention of section 9(1)(a) in Appeal No. 285/95 and Appeal No. 286/95.
3. Plea for dispensation from the requirement of pre-deposit based on a prima facie case in favor of the appellants.

Analysis:

Issue 1:
In Appeal No. 273/95, the appellant was penalized for contravention of section 9(1)(a) of the Foreign Exchange Regulation Act, 1973. The allegations involved payments made by an Indian resident in U.S.S.R. to the minor son of the appellant, followed by a payment by the appellant to a non-resident Indian. The appellant contested the charges, arguing that the evidence presented did not specifically link the payments to them and that the gifts were made under the provisions of a scheme framed by the RBI. The Tribunal found that the appellants were denied the opportunity to cross-examine a key witness and ordered a fresh adjudication, setting aside the impugned order.

Issue 2:
In Appeal No. 285/95 and Appeal No. 286/95, similar allegations of contravention of section 9(1)(a) were made against the appellant regarding payments received from another individual. The appellant argued that the evidence did not conclusively prove the alleged payments and raised concerns about the lack of opportunity for cross-examination. The Tribunal noted that the department had relied on a retracted statement without corroboration and ordered a re-adjudication, emphasizing the need for the appellants to have a fair opportunity to defend themselves.

Issue 3:
The appellants sought dispensation from the pre-deposit requirement based on a prima facie case in their favor. The Tribunal agreed that there was merit in their plea and granted dispensation, directing a fresh adjudication of all three appeals. It emphasized the importance of considering all evidence, providing copies to the appellants, and allowing them to raise relevant pleas regarding applicable laws and schemes. The Tribunal set aside the impugned orders and remanded the cases for further proceedings.

In conclusion, the Tribunal found in favor of the appellants, ordering a re-adjudication of the cases to ensure a fair and thorough examination of the evidence and the opportunity for the appellants to present their defense effectively.