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TMI Blog2010 (10) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... ught into India and in the instant proceedings also the Tribunal having concurred with the view of the CEGAT, this Court should not interfere in the above Appeals - Decided in favour of assessee. Appeals - The objection of the Respondents to the maintainability of the Appeals would have to be sustained on the application of Mohte Sham’s Case and resultantly, the Appeals would have to be dismissed on the ground that the Director of Enforcement who was the adjudicating authority had no authority to file the Appeals - The Appeals, therefore, to stand dismissed on the said ground also. Relief - Interest - The principal relief sought is that of the release of the currency amount of US $ 2,89,250 along with interest thereon @ 18% from date of seizure until release thereof to the Petitioner - However, the Petitioner would have to deal with the said amount in terms of the order of the CEGAT as also the Order impugned in the above Appeals i.e. re-export the said amount with the permission of the RBI - Since, the Respondents have retained the amount on account of the pending proceedings, we are of the view that the Petitioner i.e. Jatin Jhaveri in Appeal No. 64 of 2006 would not be entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeded to hear the Appeals finally at the admission stage. In so far as Writ Petition No. 2976 of 2004 is concerned, the same is filed hy Jatin C. Jhaveri and the relief sought therein is intrinsically connected with the issue in the above Appeals. The said Writ Petition was, therefore, kept along with the above Appeals. 3. The allegations against the Respondents concerned are for violation of the provisions of the FERA. In so far as the Respondents in Appeal No. 64 and 66 of 2006 i.e. Jatin C. Jhaveri and Ajit Dodia are concerned, the contravention as alleged is of Section 8(1) of the FERA Act and in so far as the Respondent in Appeal No. 65 of 2006 i.e. Jitendra Dodia is concerned, the contravention as alleged is of Section 8(1) read with Section 64(2) of the FERA Act. The facts 4. The facts giving rise to the said allegations can be stated as under : The Respondent in Appeal No. 66 of 2006 Ajit Dodia was travelling to Hong Kong by Swiss air flight S.R. No. 170 on 27/28-9-1993. His two checked in baggages viz one suit case and one brief case came to be randomly checked by the Customs Staff at the departure counter, which led to the recovery of foreign currency worth Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 40 of the FERA. In so far as Jatin Jhaveri was concerned, his statements were recorded on 12-10-1993 under Section 108 of the Customs Act and on 13-9-1996, 16-9-1996, 27-9-1996, 4-10-1996 and 7-10-1996 under Section 40 of the FERA. 5. It is required to be noted that the proceedings under the Customs Act were also initiated against the Appellants above named in relation to the said seizure of 403550 US $. The said Appellants were asked to show cause by the Customs Authorities as to why the said seized currency should not be confiscated under the provisions of Section 113(d), (e) and (i) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports Control Act, 1947. The said show cause notice was adjudicated upon by the Commissioner of Customs, Sahar International Air port and by his order dated 30-8-1995 directed absolute confiscation of foreign currency of US $ 4,03,550 equivalent to Rs. 1,24,49,517/- under the provisions of Section 113(d), (e) (i) of the Customs Act, 1962 read with Section 13(2) of the FERA 1973. By the said order penalty of Rs. 10 lacs was also imposed on Jatin Jhaveri, penalty of Rs. 3 lacs on Ajit Dodia and penalty of Rs. 2 lacs on Jitendra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was the seizure of foreign currency amounting to 4,03,550 US $ from Ajit Dodia, as indicated herein above. In so far as, Jatin Jhaveri and Ajit Dodia are concerned, the allegations in the show cause notice was the contravention of Section 8(1) of the said Act. Whereas, in so far as the Jitendra Dodia is concerned, the contravention alleged was of Section 8(1) read with Section 64(2) of the said Act. All the Appellants replied to the said show cause notice. The said show cause notice was adjudicated upon by the Special Director of Enforcement, Sahar International Airport, Mumbai and by his order dated 4-10-1999 the said show cause notice was confirmed and the adjudicating authority was pleased to impose penalty of Rs. 30 lacs each on Jatin Jhaveri and Ajit Dodia and Rs. 7,50,000/- on Jitendra Dodia. The adjudicating authority relied upon the Panchnama dated 26-7-1993 and the statements of the Appellants - Ajit Dodia and Jitendra Dodia. The adjudicating authority did not accept the case of Jatin Jhaveri as regards his claim to 2,89,250 US $ based on the customs declaration forms, as also his alibi regarding the balance of the amount of 1,14,300 US $, that the said amount belonged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich reliance was placed by the Appellants though the Tribunal concurred with the view of the adjudicating authority that per se the order of CEGAT would have no bearing on the proceedings under FERA. The Tribunal embarked upon the exercise of appreciating the findings of the adjudicating authority de hors the order of the CEGAT and on such exercise being carried out, came to a conclusion that the story put forth by the Appellant-Jatin Jhaveri does not appear to be a concocted one, especially having regard to the currency declaration forms which were of earlier dates. The Tribunal was of the view that the denial of having any connection with the seized foreign currency in his initial statement dated 12-10-1993 and the absence of any reference to the currency declaration forms in his said statement as also not claiming the foreign currency before the Customs and DRT officials, according to the Tribunal has been adequately explained by the said Jatin in his statement dated 7-10-1996. The Tribunal was also of the view that the gap between the two currency declaration forms was also adequately explained in view of the fact that the baggage of the Appellant Jatin was mis handled by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made. (vi) That the Tribunal failed to appreciate that the Respondents have taken inconsistent stand before the DRI and the Customs officials and that the deposition is full of inconsistency and conjecture. (vii) Lastly, that the Tribunal failed to appreciate that the facts as disclosed clearly make out a contravention of Section 8(1) and 64(2) of the FERA, by the Respondents, as the Respondent Jatin Jhaveri acquired foreign currency to the extent of 4,03,550 US $ from persons other than authorised dealers in foreign exchange in India. Submissions on behalf of the respondents (i) That the Appeals as filed are not maintainable as the same have not been filed by the Union of India but by the Director of Enforcement without any authority delegated to him by the Union of India. There is also no authority delegated to file the Civil Applications either for condonation of delay or for substitution of the Appellant on behalf of the Union of India. The Respondents relied upon the Judgment of the Apex Court in Mohte Sham Mohammed Ismail (supra) (ii) That the Notification dated 6-3-2009 on which reliance is sought to be placed by the Appellant cannot come to the aid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was also canvassed before the Tribunal by the Respondents. The Tribunal had, whilst agreeing with the view of the adjudication officer that per-se the order of the CEGAT is not binding on the Enforcement Authorities under the FERA; in view of the fact that the proceedings under the Customs Act are different from the proceedings under FERA. Whilst accepting the said view of the adjudication officer, the Tribunal embarked upon an exercise of appreciating the findings of the adjudication officer viz-a-viz the material on record de hors the order of the CEGAT. The Tribunal on such consideration came to a conclusion that the adjudication officer had whilst relying upon the statement of Jatin Jhaveri dated 12-10-1993, wherein, he had not whispered a single word about the seized foreign currency and that the same was brought from USA representing the advance payment for exports and also taking into consideration that he had not claimed foreign currency before the Customs and DRI officials, had erred in not taking into consideration the statement dated 7-10-1996 which according to the Tribunal had escaped the attention of the adjudication officer. The Tribunal was also of the view that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,000/- and other dated 28-6-93 for US $ 35,250/-. These indicate the same to have been issued on these dates to him for the amounts in question. The Commissioner in his order does not deny that these two forms had been issued. On the contrary, he refers to these documents produced before him at the hearing and mentions what seems to be changes in the dated from 26-6-93 to 25-6-93 and some discrepancy in the passport number. He however does not find that this discrepancy leads to the view that the currency declaration forms were not issued. He emphasizes the suspicions behaviour of Jatin Jhaveri and his flight from the investigation, his disowning the currency in his statement of 12-10-1993 and the fact that the currency in any case is liable to confiscation for being attempted to be exported in contravention of the provisions of the Foreign Exchange Regulation Act. 7. Jatin Jhaveri in his statement referred to has clearly disowned the currency which was seized. This however does not mean that he has for ever forfeited the ownership of it. He has a right in law to make a claim which he did later, and that claim has to be considered. There is no other claimant for the currency. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above Appeals. Though it is true that the proceedings under the Customs Act defer from the proceedings under the FERA, one cannot loose sight of the fact that the adjudication under the Customs Act was also on the basis of the same set of facts. The Customs Act, can be said to be a cognate law, in so far as the FERA is concerned, and, therefore, though the findings recorded in the Customs proceedings, may not be binding on the FERA proceedings. They cannot be said to be having no evidentiary value whilst deciding the proceedings under the FERA. As can be seen from the impugned order, the Tribunal has considered the aspect of the importation of US $ 2,89,250 by Jatin Jhaveri, threadbare on the basis of the material which was on record and as on such consideration concurred with the view of the CEGAT on the aspect of the legal importation of the said currency by Jatin Jhaveri. In the light of the said finding of the CEGAT, as also the findings which have been reaffirmed by the FERA Tribunal as also the Order passed by the ITAT, we are afraid, it is not possible for us to take a different view than the view taken by the Tribunal in the impugned order. We, therefore, do not feel it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer concerned must be specifically authorized. Only when an officer is so specifically authorized, he can act on behalf of the Central Government and not otherwise. Only because an officer has been appointed for the purpose of acting in terms of the provisions of the Act, the same would not by itself entitle to an officer to discharge all or any of the functions of the Central Government. Even ordinarily a quasi-judicial authority cannot prefer an appeal being aggrieved by and dissatisfied with the judgment of the appellate authority whereby and whereunder its judgment has been set aside. An adjudicating authority, although an officer of the Central Government, should act as an impartial Tribunal. An adjudicating authority, therefore, in absence of any power conferred upon it in this behalf by the Central Government, could not prefer any appeal against the order passed by the Appellate Board. 18. In the instant Appeals, it is an undisputed position that no such authority was given to the Director of Enforcement to prefer the above Appeals. Confronted with the said Judgment, the Learned Counsel for the Appellant sought to rely upon the Notification dated 6-3-2009 by which Not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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