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TMI Blog2007 (3) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... on or order of the Appellate Tribunal on any question of law arising out of such order : Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days." 4. In Revision Petition No. 673 of 2003 on the file of the Appellate Tribunal for Foreign Exchange, 4th Floor, B Wing, Janpath Bhawan, New Delhi, it was referred to as appeal against Adjudication Order No. DD/16-19/BZ/ HYB/2003-FEMA, Deputy Director of Enforcement, Bangalore, dated 13-5-2003. Though the same was numbered as Revision Petition No. 673 of 2003, as against the original order of adjudication referred to supra , an appeal was preferred to the Appellate Tribunal and being aggrieved of the order made by the Appellate Tribunal specified above, the present civil miscellaneous appeal is filed. It is needless to say that virtually this is an appeal as against an appellate order made by the Appellate Tribunal and the same to be numbered as civil miscellaneous second appeal instead of civil miscellaneous appeal as such. Be that as it may, as can be seen from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no specific charge as such in relation to the amount of Rs. 10,29,000 and the charge was in relation to Rs. 15,00,000 and the same had been properly appreciated by the adjudicating authority as well as by the appellate authority and hence in view of the facts and circumstances and also in the light of the reasons recorded by the adjudicating authority and also the appellate authority, there is no question of law as such involved in the matter and inasmuch as these are all factual controversies, proper findings had been recorded by the adjudicating authority and also the appellate authority as well and hence the present civil miscellaneous second appeal is liable to be dismissed. 7. Heard learned counsel and perused the order impugned in the present civil miscellaneous second appeal under section 35 of the Act and also the order of the adjudicating authority, which had been questioned in an appeal against the adjudication order specified above numbered as Revision Petition No. 673 of 2003. 8. It is pointed by Sri Suryakaran Reddy that this appeal as against the adjudication order was made under section 17 of the Act and section 17 of the Act deals with appeals to Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to Younis and Ilyas. Shri Abdul Sattar, s/o Moosa, appeared on 23-2-2001, in the office of Enforcement Directorate, Hyderabad, and gave a sworn statement, in which he had stated that he was a partner in Hyderabad Agencies, which was started in April, 1997, for dealing in soaps and confectionary of Helios Company of Mumbai; that the said company was closed on 31-3-1999, due to insufficiency of profit; that after closure of the business he handed over the premises to M/s. Rafiq Brothers and permanently left for Nizamabad to look after his family business, M/s. Moosa Abdullah Sumer, a dealer for M/s. Hindustan Lever Ltd., since 1945 and that Shri Younis Moosa or Ilyas Moosa, the partners of M/s. Rafiq Brothers can only explain about the seized money and documents. Shri Ilyas Moosa appeared before the assistant director on 28-2-2001, and gave a sworn statement narrating certain particulars including his full name and other details and stated that since 1993 they were running M/s. Rafiq Brothers doing consignee agent business for Manik Chand Gutka and Pan Masala from shop No. 5, A.P.H.B. Commercial Complex, M.J. Road, Hyderabad. Regarding Indian currency of Rs. 10,29,000 seized from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ward-I, Nizamabad, under GIR No. R-308. ( b )They were maintaining the regular books of account as required under section 44AA of the Income-tax Act, 1961, for their business. ( c )On 19-2-2001, the officers of Enforcement Directorate, Hyderabad, searched the premises of M/s. Rafiq Brothers and seized Rs. 10,29,000 found in the business premises. ( d )They submitted that the cash balance on 19-2-2001, as per the cash book maintained by the dealer was Rs. 10,35,677.23 including the sales of Rs. 10,09,000 made on that day before the commencement of the search by the officers. The sales bills, etc., were all available and the entries in the cash book were also there when the officers visited the premises. Therefore, the cash seized by the enforcement officers was nothing but the regular business cash and, therefore, the question of contravention of the provisions of the FEMA did not arise. ( e )They also submitted that so far as the contention that the sales of Rs. 10,09,000 were recorded on a single day, they stated that it was not the only occasion on which the notice made cash sales of that amount on a single day and it was a usual practice of their business. Since they wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order." 14. The adjudicating authority had taken into consideration all the statements and had carefully gone into the records of the case and the replies filed by the concerned parties and after discussing all the facts, ultimately recorded certain findings, which are as hereunder : "I have gone through the records of the case. I am unable to accept the contentions of Shri Ilyas Moosa. The statement of Shri Ilyas given before the Enforcement Officer has been written in his own hand writing and is corroborated by the statement of Shri Doshi. But Ilyas has admitted in his statement having received only Rs. 15,00,000 even though Dinesh Doshi in his statement has stated that he was going to receive another Rs. 5,50,000 from Shri Ilyas, in addition to Rs. 15,00,000, Shri Doshi has not retracted the statement during the proceedings. Therefore, based on the said statements of Shri Doshi and the statement of Shri Ilyas Moosa, I hold Shri Ilyas Moosa guilty of the charge for having received payments amounting to Rs. 15,00,000 as alleged. Regarding the receipt of Rs. 5,00,000 there is no direct evidence against Shri Moosa. Considering the facts and circumstances of the case and pursu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with his finding with reference to a part of such evidence through a statement of Dinesh Doshi. Thus, the very basis on which power of prosecution can be exercised by the learned adjudicating officer has been absent in the instant case." 16. In the light of the same, the Appellate Tribunal came to the conclusion that there is no infirmity or illegality in the impugned order and there is no substance in the revision petition and the same was dismissed. 17. In the present appeal, the following questions of law had been pointed out, which are as hereunder : 1.Whether the Appellate Board was correct while directing to release the seized amount on the surmises while ignoring the evidence on record which is corroborative and without giving any finding in respect of the said evidence on record ? 2.Whether the Appellate Board was right in dismissing the Revision Petition No. 673 of 2003 solely on the basis of the finding of the adjudicating authority without giving any finding about the other substantial evidence, i.e., the statement of Shri Dinesh Doshi ? 3.Whether the Appellate Board was correct in ignoring the fact that the co-noticee Shri Dinesh Doshi accepted the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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