9911796707
TMI Blog2015 (2) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod from 26-1-1988 to 6-1-1989, the appellant, a person resident in India, without general or special exemption from Reserve Bank of India, received various amounts totalling to Rs. 57,00,000/- including the seized Indian currency of Rs. 8,50,000/- from persons other than an authorised dealer in foreign exchange by order or on behalf of one Sh. Kareembhai of Zeenath Stores, Sharjah, UAE, a person resident outside India in violation of Section 9(1)(b); that during the said period, the appellant made various payments totalling Rs. 48.50 lacs out of the said amount of Rs. 57 lacs to Sh. Abdul Basith Kadli by order or on behalf of the said Sh. Kareembhai in violation of Section 9(1)(d) and that on or about 6-1-1989, the appellant, a person resident in India without the general or special permission of the RBI, attempted to make payment of Rs. 8.5 lacs by cash to Sh. Adbul Basith Kadli, resident of Likkivita Compound, Britto Lane, Falnir, Bunder Mangalore by order or on behalf of the said Sh. Kareembhai, a person resident outside India in violation of Section 64(2) r/w Section 9(1)(d) of FERA, 1973. 4. The brief fact of the case as evident from the documents is that on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(b), 9(1)(d) and Section 64(2) r/w Section 9(1)(d) of FERA, 1973. 7. Having heard the parties, the dispensation application is allowed and the appeal is taken up for consideration and final disposal on merits. 8. I have given my due attention to the arguments and counter arguments advanced by either party. 9. The first question that arises for my consideration is whether the adjudicating authority has given the appellant an opportunity of cross-examining the mahazar witnesses and the person who recorded the voluntary statement of the appellant. I observe at Para 3.4 on page 7 - 8 of the Adjudication order that summons were issued to Mahazar witnesses and officer who recorded appellant's voluntary statement but none appeared on the date of hearing. On 14-9-2010 when the personal hearing was conducted, the position regarding the 4 witnesses whose cross-examination was sought by the appellant was made known to Sh. Kiran S. Javali, counsel for the appellant. The Adjudicating Authority had informed him that no communication was received from the two Mahazar witnesses despite issue of summons and other two witnesses namely P. Ramakrishnaiah, Intelligence Officer, DR1 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dication Order. When the fresh enquiry led to passing of the present Adjudication Order which replaced the earlier Adjudication Order, this Tribunal's Order dated 19-7-2002 passed in Appeal No. 779/1993 against earlier Adjudication Order is non-existent in the eyes of law. Therefore, exoneration of the appellant of charges under Section 9(1)(b) & (d) of FERA, 1973 under this Tribunal's earlier Order dated 19-7-2002 stands disallowed at the threshold and that Order no more subsists. 11. As regards Panchnama dated 6/7-1-1989 the ld. Counsel for the appellant contended that panchas were not present at the time of seizure; that they have been called to the DRI office at Mangalore to sign the Panchnama prepared by the Officers; that they were not witnesses to the seizure. It is noted that the appellant was allowed cross-examination of Sh. Gangadharan, Assistant Enforcement Officer on 17-7-1992. The cross-examination supports the submissions of the appellant so far as the Panchnama is concerned. It is a matter of record that the appellant has never disputed the sequence of events of apprehension of the appellant on 6-1-1989 by the Officers of Enforcement Directorate along with Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g payments as evident from the recovery and seizure has not been disputed by the appellant. Appellant's contention was that seizure was made by the DRI officers and not by the Officers of Enforcement and therefore, he is not liable to be proceeded against under FERA. This argument cannot be substantiated in view of the undisputed facts of seizure involving contravention of FERA and power of investigation being vested entirely on the Enforcement Directorate. Appellant could not satisfactorily explain the ownership of the Indian currency of Rs. 8.50 lacs and how it came into his possession. He was evasive in his reply to SCN and also in written submission as regards the ownership of Indian currency. The burden to prove that the money came into his possession legally is on the appellant. That burden never shifts. It was, therefore, for the appellant to give proper explanation with supporting documents to disprove the allegation of compensatory payments. It is pertinent to note that the appellant had taken a futile attempt in the earlier appeal by stating that the amount of Rs. 8.5 lacs was his agricultural income. However, no documents to prove the same were submitted. Even the copies ..... X X X X Extracts X X X X X X X X Extracts X X X X
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