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TMI Blog2017 (9) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... a remittance as has been claimed by their learned counsel since the time the appellant company established their first communication with the respondent department, in relation to the allegations against them with respect to the then seven contentious remittances. The contention of the respondent that since the appellant company has been able to justify six remittances, then they should have been able to justify the one in question also, is superfluous and without merit. Thus it is evident that the respondent department has failed to establish the violation beyond reasonable doubt, on the account of the appellant. For the reasons abovementioned, the impugned order dated 04.04.2016 is quashed and set aside. The appeal is allowed. - Crl.A. 617/2016 - - - Dated:- 21-8-2017 - MS. SANGITA DHINGRA SEHGAL J. Appellant Through: Mr. R. K. Handoo and Mr. Aditya Chaudhary, Advocates Respondent Through: Mr. Amit Mahajan, CGSC with Mr. Kunal, Advocate O R D E R 1. The present appeal has been instituted under Section 54 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA ) read with Section 49(3) of the Foreign Exchange Management Act, 1999 (h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany was allowed to deposit ₹ 1.5 Lac instead of statutory pre-deposit amount. Thereafter, the Appellate Tribunal heard the matter and vide order dated 17.06.2007 set aside the order of the adjudicating authority and remanded the matter for afresh adjudication. 6. The Adjudicating Authority in the second round of adjudication vide order dated 31.03.2010 held that the appellant had failed to show the Exchange Control copies of Bill of Entries against the remittance of DM 16000 and JPY 9600000 and imposed a penalty of ₹ 35Lakhs and dropped proceedings with respect to the other five remittances. 7. The order dated 31.03.10, was assailed before the Appellate Tribunal and vide order 22.08.2014, the Chief Manager of the Punjab National Bank (hereinafter referred to as PNB ) was directed to produce the records of the impugned remittances assailed in the said appeal. The PNB sent a communication that since the records were only retained for a period of 10 years and the impugned remittances dated back to more than 10 years, their records were not available. 8. The Appellate Tribunal vide order dated 04.04.2016, while observing that the particulars of the remittances a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vative Tech Pack Ltd. Vs. Special Director of Enforcement (Crl. A. 952/2012) and Shanti Prasad Jain Vs. Director of Enforcement, FERA (1963) reported in 2 SCR 297. 12. Mr. Amit Mahajan, learned counsel for the respondent, contends that the grounds taken in the instant appeal by the appellant are a product of an after-thought as the appellant company never approached the authorised dealer to clarify the contentious entry of remittance of DM 16000 nor did they approach the RBI so as to get contentious remittance deleted from their record; that even after sending repeated letters to the appellant, no reply was received from the appellant until the SCN was issued. Thus, the Ld. Counsel submits that this conduct on the part of the appellant reeks of malice. 13. I have heard the learned counsels for both the parties and perused the available material on record. 14. At the outset, it is relevant to peruse the relevant provision under the Act; Section 8 (3) and Section 8 (4) of FERA reads as under: 8 (3) Where any foreign exchange is acquired by any person, other than an authorised dealer or a moneychanger, for any particular purpose, or where any person has been permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Affirmati Non Neganti Incumbit Probatio , that is, the burden of proof is upon him who affirms - not on him who denies . Similar view has been expressed by the Supreme Court in the case of Bhagwan Jagannath Markad and Ors Vs. State of Maharashtra reported in (2016) 10 SCC 537 , holding, 18. It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. 17. In Shanti Prasad Jain Vs. Director of Enforcement, FERA (1963) reported in 2 SCR 297 , the Supreme Court observed that the proceedings under FERA are quasi-criminal in nature and that it is the duty of the respondents as prosecutor to make out beyond all reasonable doubt, that a violation of law has occurred. 18. Upon perusal of the documents on the record, it falls that the appellant company failed to supply any information to the ED with respect to the contentious remittance, in light of the fact that they were never supplied with adequate information in the first plac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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