1992 (9) TMI 385 - AT - FEMA

Summary

Issues:
Violation of sections 9(1)(b) and 9(1)(d) of the Foreign Exchange Regulation Act, 1973; Confiscation of seized amount under section 63 of the Act; Voluntariness of confessional statement; Allegations of contravention against the appellant; Validity of penalty and confiscation imposed.

Analysis:
The judgment pertains to an appeal against an adjudication order imposing penalties and confiscating an amount under the Foreign Exchange Regulation Act, 1973. The appellant, Mr. Tan Boon Toong, was alleged to have contravened sections 9(1)(b) and 9(1)(d) by receiving payments without authorization and making payments on behalf of his wife, a resident outside India. The appellant contested the allegations, claiming his role was limited to providing guide services to medical patients from Malaysia. The appellant argued that the confessional statement was not voluntary and retracted it, citing various legal precedents to support his defense.

The respondent contended that the confessional statement was voluntary and not retracted in the show-cause notice reply. The appellant had admitted to receiving and making payments in his statements to the Enforcement Officer, which were corroborated. The respondent argued that the allegations were based on voluntary statements and thus established against the appellant. The appellant's explanation in the show-cause notice reply was deemed unrealistic and unbelievable by the Adjudicating Officer.

The Tribunal found the confessional statement to be voluntary and corroborated, dismissing the appellant's claim of misunderstanding. Legal precedents were cited to support the reliance on confessional statements and the burden of proof on prosecuting agencies. The Tribunal emphasized that once a confessional statement is believed to be true and voluntary, its facts cannot be rebutted by a mere affidavit. The penalty imposed and confiscation of the amount were deemed reasonable and proportionate to the contravention. The appeal was dismissed, confirming the adjudication order based on adequate material and valid reasons.

In conclusion, the judgment upholds the penalties and confiscation imposed on the appellant for contravention of the Foreign Exchange Regulation Act, emphasizing the voluntariness of the confessional statement and the sufficiency of evidence supporting the allegations. The legal analysis provided clarity on the burden of proof, reliance on confessional statements, and the reasonableness of penalties in such cases.