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TMI Blog2019 (6) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... ed violation of FERA, 73. The SCN's are tabulated below: SCN No. of Noticees 30.08.1998 3 person, viz 1. Stamford Agency, proprietary concern of Sh. Hansraj Thakkar 2. Sh. Hansraj Thakkar 3. Thakkar Family Trust Sh. Hansraj Thakkar, as Proprietor Sh. Hansraj Thakkar, as Proprietor Sh. Hansraj Thakkar, Sh. Hansraj Thakkar, Sh. Hansraj Thakkar, Sh. Hansraj Thakkar, Sh. Hansraj Thakkar, Sh. Hansraj Thakkar, Sh. Hansraj Thakkar, Sh. Hansraj Thakkar, 4. After issuing the impugned show cause notices, the Department did not proceed for adjudications and therefore Sh. Hansraj Thakkar had to approach the hon'ble High Court of Mumbai for directions to expedite adjudications on account of his old age and ill-health and Honourable High Court of Mumbai directed expeditious adjudication in Criminal Application no. 2757/1992. Though adjudication proceedings had already been completed but no order has been passed till 06.10.1994 on which date Ld. Advocate informed about demise of Sh. Hansraj Thakkar. The impugned adjudication order is passed on 30.08.1998. 5. The relevant brief facts are mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singapore. Even when the postage stamps affixed on wrappers were of S. $ 2.60 to S. $2.90 the invoices presented for remittances against the goods concerned by these consignments/wrappers, indicated import of 3 to 36 books. Scrutiny of the invoices not only revealed that books were priced highly but the same could have not been sent by using such low postage charges. This further proves that big cartons on which low value postage stamps were put in fact had one book as was found in consignments examined under panchanama and not all the books appearing in the invoices since those books by virtue of weight could nto be booked by putting such low value stamp. C. These parcels from M/s. SIT, Singapore have come in the regular course of the business of M/s. Stamford Agency and none of them contained any invoices, Sh. Hansraj Thakkar as per the postal Appraising Section at tempted to clear these parcels but was precluded from doing so by the Customs authorities who had examined these cartons and found only one book each. The Fact that Sh. H.M. Thakkar used to prepare invoices himself is given credence due to the report of the Forensic Science Laboratory, Kalina, Bombay. D. This Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dinner's Club Business Centre) and the firm M/s. STI were billed for the same, including for telephone calls made to Bombay and Delhi. The name of the business centre is SENANTIASA Associates, 5, Colman St., B.13, Excelsior Hotel and Shopping Centre, Singapore 0617. In fact one of the bills dated 5.10.87 of Senantiasa Associates for S. $450 was billed to M/s. STI, 3.14, Jalaram Nagar, V.B. Lane, Ghatkopar, Bombay thereby showing that M/s. STI, Singapore was only a sham Company set up by Sh. Hansraj Thakkar for the purpose of siphoning off of funds. H. The two remittances of S. $5,10,000/- each through banking channels to India only represent a portion of SH. Hansraj Thakkar's earnings on account of the sham import of books. It is obvious that he was only a conduct for remitting funds abroad of persons in India who needed foreign exchange abroad. Hence, the so called inward remittances received by him and his son as gifts are nothing but a small portion of the funds originally transferred out of India. I. Sh. Hansraj M. Thakkar has stated in his statement that if at all his son has committed any mistake (since there are documents to show that Sh. Bharat Thakkar also had been s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back in Sept. 1987 to one Yasmin. The documents also reveal that these were for the purpose of payment of taking over a bank in USA with the intentions of restarting a textile mill in Ahmedabad in India. This is a strong circumstantial proof. For the said purpose, a firm of consultant / advocates were during may/June 1988 engaged by the noticee for which a bill for US $ 35529.53 (SCN-V) were being sent to the noticee. It is also an admitted fact that Sh. Joginder Singh Sandhu & Himmat Singh Sandhu were staying in USA. Both the persons (being father & son) had jointly bought & owned property at E-10, Defence Colony, New Delhi. 6.2. Regarding the amount of US $ 40,430 acquired by the noticee (SCN-VI) on or about 10.05.88 in the form of Bankers' cheque payable in USA discussed above & pages 113-116 of seized documents bunch P) from M/s. STI, Singapore, it has seen earlier from discussions as above that since M/s. STI, Singaore was a sham concern, the question of his actual receipts form the said Sham firm did not arise. Thus, the only inescapable conclusion is that the said sum of US $ 46430 was part of his own money siphoned off to Singapore through the above discussed mechanism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judication Order disputed the death of Sh. Hansraj Thakkar, however, the hearing officer had chosen to deal with the merit of the matter and to impose penalty of Rs. 10.00 crores on late Sh. Hansraj Thakkar. 8. It was observed in the impugned order by the Adjudicating Authority that there are no authenticated documents or information towards the answers of the above stated points pertaining to the reported death of Sh. Hansraj Thakkar. As opportunity to prove the genuineness of said fact has not been availed by the noticees Smt. Bharati Thakkar of hers/heir advocate. The hearing officer had declined to agree to the reported demise of Sh. H.M. Thakkar as evidenced from facts on record, rather he pointed out the discrepancies in the death certificate and proceeded with the matter on merits against the dead person. 9. Bharat Hansraj Thakkar, the son of Sh. Hansraj Thakkar was also arraigned as a notice in one of the 12 notices/show cause notices as "abettor" to Late Sh. Hansraj Thakkar and the adjudication order was passed against him imposing a penalty of Rs. 5 crores. 10. As already mentioned that originally two appeals were filed by Sh. Bharat Hansraj Thakkar against the Adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submissions that the allegations are misconceived and untenable. The copy of the reply of the show cause notice filed by the appellant as Annexure A-4. 15. The Adjudicating Authority gave his findings from page 39, disputed the death of Sh. Hansraj Thakkar and proceeded to impose the penalty. While deciding the matter on merits, when it was pointed out to the ld. counsel for the respondent. She agreed that the matter ought not to have been proceeded on merit against the dead person. 16. It has come on record that the penalty was imposed on a dead person rendering the adjudication order a nullity and liable to be setaside only on this short grounds itself as argued by the counsel for the appellants. This contention was conceded by the Ld. counsel appearing for the Department during the course of hearing on 27.03.2019. 17. Sh. Bharat Hansraj Thakkar was impleaded in the show cause notice (I) as an abettor. The show cause notice no. V. appears to have been marked to him but without any allegation or narration of any allegation in the body of show cause notice Sh. Bharat Hansraj is only mentioned in the said SCN. 18. The adjudication order against Sh. Bharat Hansraj Thakkar is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to double check as to whether pages may not be missing from the impugned order, another photocopy was compared with connected appeal no. 37/2000 which was tallying with the impugned order filed along with main file of the appeal, where the clean copy is available. 23. Thus, rendering the order against Sh. Bharat Hansraj Thakkar without any valid findings pertaining to penalties is not sustainable in law. As far as Hansraj Thakkar is concerned, the penalty was imposed against the dead party despite of having the knowledge about his death. 24. In view of facts and circumstances, the appeal is allowed in the case of Sh. Bharat Hansraj Thakkar of a penalty of Rs. 5.00 crores and the impugned order against him is quashed as there is no reasoning in the Adjudication Order. 25. The show cause notice seeks to hold the Sh. Bharat Hansraj Thakkar liable on account of "abetment" in terms of Section 64 of FERA, sine repealed. Once the order passed against Sh. Hansraj Thakkar, the main offender, is a nullity, being passed against a dead person "abettor" cannot be held guilty in the absence of guilt adjudged against main offender. The matter is 32 years old. Both alleged accused and abetto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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