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TMI Blog1994 (2) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shri Kumud J. Dharia. He has stated that he is not in a position to pre-deposit the huge penalty of Rs. 25 lakhs and in the circumstances, he prays for recall of the said order. The applicant has also filed a detailed affidavit as a rebuttal to the affidavit filed by the Collector. He has denied about his involvement in a bank fraud to the tune of Rs. 4.14 crores through M/s. Asian Wire Ropes Ltd. as alleged by the Collector in his affidavit. He also states that the proceedings have been stayed by Hon'ble Andhra Pradesh High Court. He has denied that invested part of his wealth in the name of his brother, Shri Thimmayya and established a poultry farm at Sholapur in Maharashtra. He has also denied that he has got any connection with the said poultry farm. He has stated that the farm belongs to Shri G. Ankamma and Shri G. Venkata Rao who have been advanced loan by Indian Bank. He has stated that he has got only three brothers and not five as alleged by the Collector. He has denied about jointly owned land 400 acres at Udaigiri in Nellore District of Andhra Pradesh. He has also denied about purchasing land measuring 120 acres from Shri Sundara Ramayya, Civil Contractor. He has sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant wants us to believe that as a Minister, ex-Managing Director and as an MLA, he is a poor man and never earned money to pay as Income Tax. This is a very hard statement to believe that Managing Director was earning more than Rs. 2500/- per month. He was certainly within the tax limit. There is no emphatic denial that his family is not a Hindu joint family and there is a partition in the family. It is on record that his brother was merely a school teacher and the properties have come into existence only after his association of the appellant. Therefore, the property being of Hindu joint family, property cannot be ruled out. The appellant had merely stated that the property owned by his brother was his property. It is also the case of the Collector that the property is in the name of the appellant's brother but what is being shown through all the circumstantial evidence is that these properties have come into existence only through the appellant. The appellant has not come to the court with clean hands and he is not willing to tell the truth. The fact that they are having rich property owned by brother and sister who were at one time, nobody clearly indicates that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially based on the affidavit of the Collector of Customs dt. 4-8-1993 filed by the Revenue through an application dt. 13-8-1993. The applicant's learned Advocate on 10-9-1993 had requested for further time to file a counter-affidavit to rebut the facts given in the Collector's affidavit dt. 4-8-1993. The request of the learned advocate was, however, not acceded to on the ground that it had been made clear on an earlier date that the applicant should file counter-affidavit, if any, before 10-9-1993. Hence the request for adjournment was turned down. I also notice that thereafter, Shri Madhav Rao was asked to proceed with the arguments in support of the stay application. Shri Madhav Rao refused to make the arguments and he again sought time to file the affidavit. In the circumstances, learned SDR was asked to address his arguments on the stay application filed by the applicant. 7.1 From aforesaid sequence of events it is, therefore, evident that Stay Order No. C/51/93-B2 is essentially an ex parte order without any rebuttal counter-affidavit of the applicant being on record to the allegations levelled by the Collector in his affidavit dated 4-8-1993. This rebuttal counter-affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and raids or by any other method but an intelligence by itself cannot be treated as an evidence. An intelligence is in the realm of suspicion. It is well settled proposition of law that suspicion is no substitute for evidence. If we have to decide about the culpability of Shri Janki Ram, on the basis of intelligence that should not be done by us on account of the said proposition. Therefore, what cannot be made use of at the time of final decision of the appeal, it certainly cannot be made use of at the time of deciding the stay application. I am, therefore, of the view that the department has not been able to bring on record any satisfactory prima facie evidence regarding the financial soundness of the applicant so that he is in a position to deposit the entire amount of penalty or even part of it for the purposes of Section 129E of the Customs Act. The mere fact that the applicant had been the former Minister in the State of Andhra Pradesh or he had been the Managing Director in the firm which is one of the main appellants/applicants in this bunch of connected cases drawing Rs. 2500/- p.m. as a salary in AWRL, it cannot be said that by holding these two posts the applicant must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence as brought on record, as held by the Technical Member. Dated : 26-4-1994 Sd/ (P.C. Jain) Member (T) Sd/- (S.L. Peeran) Member (J) 14. [Order per : K.S. Venkataramani, Member (T)]. - The learned Counsel Shri S. Murlidhar addressed arguments on the points of difference. He submitted that the appellant herein has filed an affidavit on 24-4-1992 that he has no immovable property and that he is not filing any income tax or wealth tax returns. The learned Counsel pointed out that the Collector's affidavit contains an admission that documentary evidence regarding holding of property by the appellant is absent and yet the affidavit goes on to make vague assertion about amounts involved. The learned Counsel argued that the Department's own enquiries with Mandal Revenue Officer had shown that the appellant was not holding any property. He has further submitted that a case against the appellants regarding alleged defrauding of Vijay Bank has been withdrawn by the CBI before the Karnataka High Court vide the High Court Order dated 6-12-1993 in Writ Petition No. 12287-89/93-G.M. The learned Counsel also contended that other appellants in the case of ......... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Department's own enquiry regarding holding of 400 acres land at Udayagiri has evoked a reply from the Mandal Revenue Officer, Udayagiri that the appellant is not holding any land in his name. This was in reply to the query for documentary evidence of property held by the appellant and his relatives. Another letter from the Mandal Revenue Officer, Seetharamapuram also says that the appellant and his close relatives are not having any property in that village. The other piece of evidence to show his financial situation is the private account seized from the father of Shri Subhash Gupta which would indicate that large amounts have been paid as commission to the appellant but in this context, it will be relevant to bear in mind that this piece of evidence was equally applicable to the other appellant Shri Subhash Gupta as an index of the financial position. However, in that case stay has already been granted. Another relevant factor to be noticed is that in the order of Hon'ble Member (Judicial) also it has been noted that the appellant has stated that he does not have his own property. As has been observed by the Member (Technical) in his order, the appellant has given plausible ..... X X X X Extracts X X X X X X X X Extracts X X X X
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