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TMI Blog2016 (5) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... said Section 8(1). The assessment in that behalf by the Appellate Authority under FERA and the High Court is completely incorrect. Mr. Bhatt, attempted to rely on Notification No.FERA-81/89-RB dated 09.08.1989 as amended upto 09.03.1999, but the said notification is in relation to Section 13 of FERA and not in relation to Section 8(1) thereof. Secondly, this notification was not adverted or referred to at any stage and in any case does not deal with acquisition as contemplated under Section 8(1) of FERA. Therefore, the orders passed by the Appellate Tribunal, FERA and by the High Court while accepting the view taken by the Special Director are set aside. The order of confiscation is upheld. Since the amount of ₹ 1,83,09,525/- was refunded and credited to the account of Jatin Jhaveri during the pendency of the proceedings subject to his undertaking to return the same with interest, he is directed to refund the amount with interest @ 10% per annum within six weeks from the date of this judgment. - Appeals disposed of - Civil Appeal No.11127 OF 2011 With Civil Appeal No(s).11128-11131/2011 - - - Dated:- 13-5-2016 - T.S.THAKUR, CJI AND UDAY UMESH LALIT, J For the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived US $ 289,250. According to him, his baggage that arrived along with him on 25.06.1993 had contained US $ 254,000 while other bag which arrived three days later on 28.06.1993 contained remainder namely US $ 35,250. In support of his claim, reliance was placed on Currency Declaration Form No.100250 dated 25.06.1993 in respect of US $ 254,000 and Currency Declaration Form No.10763 dated 28.06.1993 in respect of US $ 35,250. According to him the currency was obtained and imported by him as advance payment towards supply of diamonds, that he could not deposit the currency in the bank as the bank had refused to accept the same and therefore he was proposing to take it along with him to Hongkong on 27.07.1993. It was his further case that while he was going towards the Airport he had received a message that his mother was ill and that Ajit Dodia was intercepted with currency and therefore he did not go to the Airport. D. Commissioner of Customs by his order dated 30.08.1995 concluded that the currency was being taken by Ajit Dodia illegally. He found that Jatin Jhaveri had played a major role and made available the currency in question and had also packed and concealed the same in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for short), West Regional Bench, Mumbai. It held that though Jatin Jhaveri had disowned the currency in his statement dated 12.10.1993, it did not mean that he had forfeited the ownership and could not make a claim in respect thereof at a later stage. The concerned Currency Declaration Forms according to CEGAT sufficiently proved that the currency was brought in by said Jatin Jhaveri. It however held that the currency amounting to US $ 289,250 was sought to be unauthorisedly exported, and was liable to confiscation but imposed fine of ₹ 9 lacs in lieu of confiscation of US $ 289,250. The personal penalty imposed on Jatin Jhaveri was also reduced from ₹ 10 lacs to 7 lacs. In so far as currency amounting to US $ 143,300 was concerned, since no one made any claim in respect thereof, the confiscation was confirmed but the personal penalty imposed on Ajit Dodia was reduced to ₹ 1 lac. As regards Jitendra Dodia, it was observed that he had dissociated himself and the role attributed to him was also limited to packing the bag. This decision rendered by CEGAT was not challenged and attained finality in respect of proceedings under the Customs Act. G. Thereafter an add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in the impugned Show Cause Notice. Thus the charges of contravention of Sec. 8(1) of the FERA 1973 against Shri Jatin Jhaveri and Shri Ajit Dodia and of Sec. 8(1) r/w Sec. 64(2) of the FERA 1973 against Shri Jitendra K. Dodia are proved beyond any doubt. Accordingly, I hold them guilty of these respective contraventions against them. Concluding thus, the Special Director imposed penalty of ₹ 30 lacs each on Jatin Jhaveri and Ajit Dodia and of ₹ 7.5 lacs on Jitendra Dodia. It was held that the currency in question was liable to confiscation under Section 63 of FERA and it was so ordered. I. This order of the Special Director was challenged in Appeal Nos.454, 462 and 463 of 1999 by Jatin Jhaveri, Jitendra Dodia and Ajit Dodia respectively before the Appellate Tribunal for Foreign Exchange, which disposed of those appeals by its order dated 10.03.2004. It accepted the appeal preferred by Jitendra Dodia and held that he could not be held guilty of the charge of abetment in acquiring and transferring of Foreign Exchange unlawfully. In appeal preferred by Ajit Dodia, the confiscation of currency amounting to US $ 114,300 was affirmed but the penalty was reduced t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und the amount of US $ 289,250 in Indian Rupees. Accordingly amount of ₹ 1,83,09,525 was refunded and credited to the account of Jatin Jhaveri subject to the undertaking to return the said sum with interest in case this Court were to accept the appeals preferred by Union of India. 4. Mr. R.P. Bhatt, learned Senior Advocate, who appeared for Jatin Jhaveri submitted that the currency declaration forms were accepted and relied upon in Customs proceedings and thus the aspect of bringing into India of the currency in question, was rightly held in his favour. The ownership of the currency having been established, in his submission, Jatin Jhaveri was entitled to the same. On the other hand, Mr. K. Radha Krishnan, learned Senior Advocate, appearing for Union of India submitted that the initial statement of Jatin Jhaveri recorded on 12.10.1993, which itself was more than two months after the seizure, did not even whisper about currency declaration forms and no ownership in respect of currency was claimed. In his submission, Currency Declaration Forms were rightly observed to be suspicious and not relied upon by the Special Director. It was further submitted that the scope of proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wise acquires any foreign exchange. The emphasis in proceedings under FERA is, therefore, on such acquisition of foreign exchange without the previous general or special permission of the Reserve Bank. Any failure in that behalf would lead to incidents including confiscation under Section 63 of the FERA. 7. We have gone though the currency declaration forms in question. It is relevant that in his first statement dated 12.10.1993, Jatin Jhaveri had clearly dissociated himself and disowned the currency in question. This statement itself was more than two months after the seizure. The subsequent reliance on currency declaration forms was, therefore, rightly found suspicious by Special Director in his order dated 04.10.1999. Mr. Bhatt, learned Senior Advocate placed before us letters dated 14.06.1993 and 23.06.1993 in support of the contention that contracts were entered into pursuant to which currency amounting to US $ 289,250 was received by Jatin Jhaveri while he was in USA. These letters are bereft of any details and in our view are quite self-serving. At the same time, as found by the Special Director, the original passport of Jatin Jhaveri was never produced from which it co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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