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TMI Blog2011 (1) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... ant for violation of provisions of Section 9(1 )(a) of FERA. 3. The facts leading to these appeals are that in the year 1991 the Government has promulgated an Act namely Remittances of Foreign Exchange and Investment in Foreign Exchange Bond (Amenities and Exemptions) Act, 1991 to provide certain amenities to persons receiving remittances of foreign exchange and to persons owning foreign exchange bond for certain exemptions from Direct Tax in relation to such remittances and bond due to the fact that at that time there was shortage in flow of foreign exchange in the country. 4. As per the said Act the NRI s were permitted to open NRE Account in India and permitted to deposit any amount of foreign exchange and were granted amenities from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality. 7. The question of involving in the present case is whether violation of Section 9(1)(a) is proved or not. The counsel for the appellants contended that the appellants were not offered any opportunity to cross examine the witnesses and denial of opportunity to cross examination the witness and is violative of principles of natural justice. In support of his argument the counsel relied on a judgment of the High Court of Delhi in ITA No. 1264/08 dated 16-2-2000 in case of Commissioner of Income Tax v. Ashok Gupta in which the Apex Court has laid down that refusal to give an opportunity of cross examination and violates the principles of natural justice. 8. Shri B. Naveen Kumar on the other hand supported the judgment and contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cheques worth Rs. 2,50,000/- to each. Admittedly the appellants had not produced any general or special permission from RBI. 10. Now the question remains whether these gift cheques were issued by Shri Rakesh Arora without any consideration. A gift cheque can be issued without consideration to friends or relatives but if gift is made in favour of a total stranger person than it will give rise to presumption that the gift were made for some consideration. In such circumstances it was for the appellants to come forward and depose that they have received gifts from Rakesh Arora due to their close relationship or friendship but the appellants did not choose to put it before the Adjudicating Authority. The relationship between Rakesh Arora an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not criminal proceedings . The officers of the Enforcement Directorate and other administrative authorities are expressly empowered by the Act to adjudicate only. Indeed, they have to act judicially and follow the rules of natural justice to the extent applicable but, they are not Judges of the Criminal Courts trying an accused for commission of an offence, as understood in the general context. They perform quasi-judicial functions and do not act as Courts but only as administrators and adjudicators . In the proceedings before them, they do not try an accused for commission of any crime (not merely an offence) but determine the liability of the contravener for the breach of his obligations imposed under the Act. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rea is not essential ingradient for imposing penalty and further held that the classic views that no mens rea no crime is not applicable in the economic offence. 13. The Apex Court has thus held that the proceedings under FERA are civil in nature and the court while dealing with the proceedings can impose the penalty on the basis of preponderance of probabilities. 14. In the present case the appellants who had admittedly received a draft of Rs. 2,50,000/- from Rakesh Arora and has refused to give their relationship with them. The learned CA was specifically asked about the relationship of the appellants with Rakesh Arora, even by this Tribunal at the time of hearing and their learned counsel Shri Khiwani refused to answer the said que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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