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TMI Blog2018 (5) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms. Aditi Kharpate, Advocate For the Respondent : Shri Pankaj Yadav, Legal Consultant JUDGEMENT FPA-FE-82/DLI/2008 1. The appeal has been filed against the Order dated 14.11.2007 passed by the Adjudicating Authority imposing the penalty of Rs. One Crore upon the appellant. 2. The Show Cause Notice dated 07.05.2002 which forms the basis of the present proceedings were initiated. As per the said Show Cause Notice, the whole case started with the statement of Sh. Rajesh Jain, owner of M/s Mondial General Trading UAE. In para 4, Rajesh Jain deposed that he himself and one Naresh Jain of Dubai sent the remittance to Sh. Bimal Kumar Jain who used to distribute the money in India. He stated that he did not even know Sh. Deep Sw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, New Delhi. He further stated that Shri Deept Swaroop Agarwal has handed over the cheques to their office person for clearing the shipments. He also stated that he never met a person namely Shri Rajesh Agarwal, however, on one occasion Shri Rajesh Agawal made a call at his office for some clarifications. Shri Devinder Lal submitted the relevant documents of export of CD Roms made by M/s. Sundram Exports (P) Ltd. 4. It is submitted on behalf of the appellant that as per allegations of department, Sh. Bimal Kumar Jain was the main person behind the whole transaction and same impugned order date 14.11.2007 against Sh. Bimal Kumar Jain was quashed vide order dated 29.03.2009 in Appeal No. 05 of 2008 by the Predecessor Tribunal (Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings and the circumstantial evidence revealed that the whole export transactions were devised by Shri Bimal Kumar Jain to get funds for making hawala payments in India by way of remittances so as to give a colour of legitimacy to the ill-gotten funds which were received in the guise of remittances against exports. Shri Rajesh Agarwal, director of M/s. Sudram Exports (P) Ltd., S/Shri Deep Swaroop Agarwal and Sulekh Chand Jain had assisted in execution of the transactions of procurement and export of CD Roms of no value to M/s Mondial Trading which consignments were reportedly abandoned in Dubai on arrival. No doubt, the statements of Shri Rajesh Agarwal given over a period of time were inconsistent. But in such situations, the adjudicating o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that an offence is made out only when a person in resident in India, make any payment to, or for the credit of, any person by order or on behalf of any person resident outside India. 11. The allegations against the present appellant are mentioned in Para(s) 8, 10 and 11 of the Memorandum. It has been alleged that he has acted as agent for procurement of CD roms from Super Cassette Industries Ltd. and that he was a commission agent for the said purpose. The other allegation is that of he having handed over the export documents and some alleged cheques to the CHA Devinder Lal. There is no evidence about him giving any cheque, even if such cheques were given by him, it does not constitute any offence under FERA or section 9(1)(d). 12. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mately resulted in violation of section 9(1)(d). Counsel for the respondent has not denied that the proceeding against him are quashed and no appeal was filled and the said order attained finality. 14. There is no allegation in the Show Cause Notice or the Adjudicating Order that Appellant either made any payment of any such foreign exchange or was aware about any such payment. In any case, a person who had done the whole transaction has been let off and the same Adjudicating Order against him has been quashed, the order against the Appellant can be sustained even on parity. 15. In view of the above referred to facts and circumstances, I set aside the impugned Adjudicating Order No. SDE/ SKP/ III/ 38/2007 dated 14.11.2007 which is pas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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