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TMI Blog2023 (7) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... he FERA Act. No case is made out for holding the Petitioner guilty for violation of Section 9(1)(d) r/w Section 64(2) of the Customs Act. The seized documents do not corroborate the fact of receipt and distribution of said amount by the Petitioner. This is a clear case where the Petitioner appears to have been deprived of his amount of Rs. 1,48,000/- without authority of law on a totally untenable basis. The Petitioner could have utilized the said amount, the value of which at the relevant time was substantial. Considered from all angles, the Respondents could not have retained the said amount depriving the Petitioner from his legitimate entitlement. We would, hence be justified in allowing interest to the Petitioner in allowing this Writ Petition. An amount of Rs. 1,48,000/- shall be refunded by the respondent to the petitioner within a period of four weeks from today with simple interest at the rate of 6% per annum from 12 May 1988. - WRIT PETITION NO.8148 OF 2004 - - - Dated:- 21-7-2023 - G.S. KULKARNI RAJESH .S. PATIL, JJ. For the Petitioner : Ms. A.M.Z. Ansari. For Respondent Union of India : Mr. Rui Rodrigues. JUDGMENT : (Per Rajesh S. Patil, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved by the Order passed by the Assistant Director of Enforcement, the Petitioner filed an appeal, (Appeal No. 514 of 1989) before FERA Appellate Board. The Appellate Board on 25 February, 1992, after hearing the parties was pleased to allow the appeal of the Petitioner. 7. In the meanwhile the Assistant Director of Enforcement, under Section 9(1)(b) and 9(1)(d) of FERA issued another Show Cause Notice, to the Petitioner, dated 25 May, 1990. The said notice stated that the Petitioner had received amount of Rs. 1,78,000/- from a person in India on behalf of person residing outside India and was supposed to make payment of Rs. 2,89,000/- to various persons on instructions of certain individual residing outside India. 8. The Petitioner on 4 October, 1993 replied to the Second Show Cause Notice, through his advocate and denied allegations made in the Show Cause Notice dated 25 May, 1990. 9. On 16 May, 1995, the Deputy Director of Enforcement Directorate, passed an Order thereby holding the Petitioner guilty under Section 9(1)(d), r/w Section 64(2) of FERA and imposed a penalty of Rs. 22,000/- on the Petitioner. The charges under Section 9(1)(b) were dropped. 10. The Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed on the Petitioner was very harsh and unjust. She further stated that two Show Cause Notices dated 5 May, 1989 and 25 May, 1990 were issued by E.D. based on the same facts and concerning same seizure. She further submitted that there was no evidence on record to hold the petitioner guilty. Therefore the present Writ Petition should be allowed and the impugned Order should be quashed and set aside. So also the Petitioner should be given a refund of Rs. 1,48,000/- that was seized from his premises on 12 May, 1988. 16. Mr. Rui Rodrigues, advocate for Respondent No. 1/Union of India submitted that the Writ Petition has no merits and the impugned Order passed by the Appellate Tribunal was a reasoned Order and no interference is required in the said Order. The Petitioner has admitted that the notice of hearing was received by him, however he chose not to attend the hearing, hence the Appellate Tribunal had no option but to proceed with the hearing in the absence of the Petitioner. After seizure the Petitioner s statements were recorded, when he had admitted that the offences were committed by him. Hence, the Writ Petition should be dismissed. 17. We have heard Counsel of both t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t penalty amount of Rs. 30,000/- to be refunded back to the Appellant. Second Show Cause Notice 22. Thereafter, after one more year that is on 25 May, 1990 a second Show Cause Notice dated 25 May 1990 was issued by the E.D. to the Petitioner, based on Panchnama dated 12th May, 1988, recorded two years ago stating therein that a sum of Rs. 1,78,000/- was received by petitioner from person outside India and the Petitioner was to make payment of Rs. 2,89,000/- to various persons in India on behalf of the person outside India. Thereby there was contravention of the provisions of Section 9(1)(b) and 9(1)(d) of the FERA. 23. As far as the second Show Cause Notice dated 25 May, 1990 was concerned, the same was replied by Petitioner by his letter dated 4 October, 1993. The said reply specifically stated that no statements of any person were recorded, who could be alleged to be recepients of the amount. The said letter also recorded that the amount of Rs. 1,48,000/- was already released and was sent to the Income Tax Department. The Income Tax Department had issued directions under Section 132 A of the Income Tax Act. This fact itself shows that E.D. had arrived to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cloth Stores of Petitioner. 29. This fact itself shows that after being unsuccessful in the first round, the E.D. had issued a second Show Cause Notice. The E.D. department had not recorded statement of any person who according to them had received any benefit from the said amount of Rs. 45,000/-. There was no evidence to prove the petitioner guilty as regards proposed distribution of Rs. 2,89,000/-. As regards the sum of Rs. 45,000/- is concerned, the Petitioner had officially received these amounts and had shown the same in the Income tax returns. In fact, in the Order of the Commissioner of Income Tax (Appeals), it has been quoted that the assigning officer in his remand report dated 17th June, 2004 had admitted that seized cash seems to be cash on hand on the firm. 30. In fact, there is nothing on record to prove that the Petitioner had committed an offence under Section 9 (1) (d) of the FERA Act. No case is made out for holding the Petitioner guilty for violation of Section 9(1)(d) r/w Section 64(2) of the Customs Act. The seized documents do not corroborate the fact of receipt and distribution of said amount by the Petitioner. 31. This is a clear case where the P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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