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TMI Blog2016 (9) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. The proceedings were concluded within a span of six months while in another matter with identical allegations for the alleged breach by the same Adjudicating Authority, proceedings against the appellant were dropped. We are in agreement with the Ld. counsel for the appellant that proper application of judicial mind has not been made effected while deciding the proceedings and the Adjudicating Authority was not clear about the role of the appellant in the Impugned Order. He has at several occasions wrongly mentioned noticee number of the appellant to be notice No. l instead of noticee No.2. It is also relevant to mention that opportunity for personal hearing was given on 23-03-1999 while the same Adjudicating Authority fixed 24-03-1999 in connection with SCN No. T-4/2/B/96 dated 24-03-1994. The evidence of hand writing expert as per settled legal position Is a mere opinion, however, it carries some weight and the appellant had filed a report denying that the disputed writing was not in his hand. It may also be mentioned here that the standard of proof under FERA was more stringent as compared to proceedings under FEMA and the Adjudicating Authority recorded different findings i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that when he came to India, in February, 1994 he met one Rajendra Devraj Mehta @ Raju Devraj Mehta @ Raju Mehta of Pune and opened NRE accounts with Punjab National Bank, Pune and another NRE account with Sangli Bank out of the foreign exchange provided by the said Rajendra D. Mehta and handed over signed blank cheque books and complete documents for a consideration of ₹ 12,000/-and was told by Rajendra D. Mehta that the foreign exchange deposited by him in the NRE accounts would be used for selling gift cheques to the persons resident in India. 4. Statement of Jeetu G. Lalwani was also recorded on 18-7-1995 and 24-7-95 who stated that he had opened ten NRE accounts with various banks in Pune out of the foreign exchange provided by the said Rajendra D. Mehta on a consideration of ₹ 25,000. He also stated that his NRE accounts were credited with foreign exchange purchased in the local market at the market rate by Rajendra D. Mehta and proceeds of such credits were sold as gift cheques etc. to various persons and he signed the blank cheques and other bank documents and handed over the same to Rajendra D. Mehta. 5. Residential and business premises of Rajendra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' written on the first line means Rajendra Mehta and '27/50' RD NRE meant that he had to pay ₹ 2,75,000 to the said Rajendra Mehta for the purchase of foreign currency and for deposit in NRE account. 7. The details of the transactions undertaken have been given in the impugned order. It is alleged that Rajendra D. Mehta and appellant Prakash Bafna who were persons resident of India had purchased foreign exchange equivalent to ₹ 1,23,29,010 at the rate other than authorized by RBI without any general or special permission of the RBI and had credited the foreign exchange alongwith cheques drawn on other NRE accounts totaling to ₹ 1,80,88,618 into the credit of the said NRE accounts without the permission of the RBI and made payments totalling ₹ 1,72,97,500 to various persons in India on behalf of the persons resident outside India without general or special exemption from RBI. 8. It is alleged that the Rajendra D. Mehta and the appellant Prakash Bafna, Prakash Parwani and Jeetu G. Lalwani had contravened the provision of 8(1) 8(2), 9(1)(a) and 9(1)(d) r/w/Section 64 of FERA, 1973. Memorandum dt. 14-02-1996 was issued to the appellant and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 05-01-2001 dropped the proceedings, copy of which is on record. Submission is that in respect of similar imputations the Assistant Director in adjudication order No.ADJ/94/AD/JS/B/2/2000 No. 3951 dated 28-02-2000, copy of which has been filed in the proceedings against the appellant were dropped. These proceedings were based on the same statement of the appellant dated 23-09-1995 upon which the present proceedings were initiated. Further submission is that while passing the impugned order, the Adjudicating Authority has not applied judicial mind and the order is based on irrelevant considerations. 12. It has also been submitted that the statement of the appellant was recorded after subjecting him to physical torture and he was made to admit the contents of the statement given by Rajendra D. Mehta. However, the appellant quickly retracted the statement and provided the Department medical evidence as proof of the fact, of his being subjected to physical torture. Submission is that the appellant promptly replied to the SCN denying the allegations and stated in clear terms that he has been falsely implicated by co-noticee Rajendra D. Mehta in the case. Copy of the reply of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the said SCN. Thus the Adjudicating Authority was wrongly miscarried by recording that any hearing was fixed in the instant matter on 23-03-1999. It has also been contended that the Adjudicating Authority lost sight of the fact that the appellant was not named by the NRIs and the bankers and the only evidence against him was the statement of Rajendra D. Mehta which is exculpatory in nature and also the retracted statement of the appellant has been relied upon illegally. No corroboration is available by any independent evidence. Submission is that no case under the alleged provisions of FERA, 1973 is technically made out against the appellant on the basis of the facts and circumstances placed by the respondent. The judgment of the FERA, Board quashing the proceedings has been ignored and since the appellants has been exonerated for identical allegations, therefore, the Impugned order is not sustainable. Submission is that it is against the settled legal position that a consolidated penalty can be imposed against the alleged contraventions. Imposition of separate penalties for distinct contraventions is the rule, therefore, the impugned order is not sustainable. Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of ₹ 37,000/-without the permission of the RBI therefore, a clear case of violation of the provision of 8 (1), 8(2), 9 (l)(a) and 9(l)(d) of FERA, 1973 is made out against the appellant. The noticees were not afforded due opportunity to defend themselves. Minor discrepancies in mentioning the appellant as notice No. 1 at some places is of no consequence. Amount of penalty imposed is perfectly justified. The opinion of the hand writing expert is not a conclusive proof and the Adjudication Order passed in other matters against the appellant or others by the same Adjudicating Authority wherein the charges against them have been dropped also have no relevance with the instant matter and the appeal has no force and is liable to be dismissed. Ld. legal consultant has relied on the judgment in Durga Dut Chunni Lal v. CIT MANU/UP/0254/1966 of the Allahabad High Court. 15. We are of the view that the judgment relied upon by the Ld. legal consultant does not help the respondent in justifying imposition of consolidated penalty because appellant of that case is alleged to have contravened different provisions of different act and the same has no binding effect. It will be very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant and co-noticees Rajendra D. Mehta and Prakash Parwani also proceedings were dropped. Similarly in the Adjudication Order ADJ/B/SDE/PKE/2001/8379 dt. 05-01-2001 passed by Sh. P.K. Ajwani, Special Director for alleged contraventions under section 9 (1) (a), 9 (1) (b) and 9 (1) (d) for identical allegations the proceedings were dropped against all the co-noticees of the said Adjudication Proceedings and the appellant Prakash Bafna was also exonerated in the proceedings. Suprisingly the Impugned Order has also been passed by the same Special Director holding appellant guilty for the similar contraventions based upon almost same evidence. 18. From the perusal of the Impugned Order it is clear that 22-2-1999, 23-3-1999 and 24-6-1999 were fixed for hearing. The main allegations in the instant proceedings were leveled against co-noticee. It is not alleged that the appellant was resident outside India. Nothing incriminating from the raid carried out at the residential and business premises of the appellant could be found. There is no documentary evidence in support of the allegations of the respondent. There is no evidence on record to show that the appellant was involved in any ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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