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TMI Blog2024 (7) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... ere held established against the Appellant. In the Impugned Order dated 31.03.1997 one SCN issued to the Appellantwas disposed of with the penalty of Rs. 8, 50, 000/- on the Appellant for the contravention of Sections 8 (1) and 9 (1) (a) of FERA. 2. This Tribunal, vide order dated 26.09.2007 passed in Appeal No. 408 of 2001, directed the Appellant to deposit the entire penalty of Rs. 50, 79, 500/- as pre-deposit of penalty. The Appellant challenged the said order before the Hon'ble Bombay High Court in Writ Petition No. 67 of 2008. The Hon'ble Bombay High Court, vide order dated 18.01.2008 partly set aside the order dated 26.09.2007 passed by this Tribunal and directed the Appellant to deposit a sum of Rs. 10, 00, 000/- as pre-deposit of penalty. In compliance with the said order, the Appellant deposited a sum of Rs. 10, 00, 000/- with the ED on 17.03.2008. 3. This Tribunal, vide order dated 12.03.2018 passed in Appeal No. 365 of 1997, directed the Appellant to deposit a sum of Rs. 1, 70, 000/- as pre-deposit of penalty. In compliance with the said order, the Appellant deposited a sum of Rs. 1, 70, 000/- with the ED on 14.05.2018. 4. Ld. Counsel for the Appellant argued that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasoned and speaking. They argued that the Appellant had in his own statements while explaining the documents which were seized from his business and residential premises, accepted the under invoicing indulged-in by him. The Appellant had himself stated that from August, 1993 to July 1994 he had imported 32 consignments of Carbamezapine having total weight of 22, 530 Kg in the name of M/s Centaur Chem, Bombay from various suppliers. He admitted that M/s Centaur Chem had an office in Daman which helped him to save sales tax and octroi. He in his statement gave the details of quantity imported against the invoice value and the actual price reflecting under invoicing of US$ 114, 150. He admitted that the differential amount was paid by his sister Ms. Seema Shah residing in USA. He also admitted having made payments to certain individuals in Kerala on instructions of his brother-in-law Shri Prakash C. Shah. These payments have been corroborated by the statements of the recipients. Further, the diary marked M seized from the business premises of the Appellant revealed payment of Rs. 31, 000/- to one Ms. D'Souza Vilma by the Appellant on the instructions of person abroad. 7. Ld. Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particularly stated to be in view of almost immediate retraction of their statements filed by them in the court/office of the Directorate. On going through the records of the case, I find that the statements of Shri Karunakar were recorded on 6.9.94 and 7.9.94 and those of Shri Shailesh Shah on 5.8.94 and 6.8.94. It is further seen that Shri Karunakar had filed a petition dtd. 8.9.94 before the Addl. CMM before whom he was produced after his arrest, retracting the statements given by him earlier. He had also filed a letter dtd. 6.12.94 in the office of the Department further retracting the statements and rebutting the allegations contained in the remand application. Similarly, Shri Shailesh Shah had also retracted his statements vide his petition filed by him before the court on 8.8.94. It is pertinent to note in this connection that the statements of both these notices were recorded in their own handwriting and in the language known to them. Further, it is observed that these statements are mostly in the nature of their explanation with regard to the documents seized from their own premises and those of others. Moreover, the Department had also repudiated the allegations ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of US$ 1, 14, 150 happened for the said consignments. He also narrated that the said difference was paid by his sister residing in USA. He denied having indulged in under invoicing for the remaining consignments in the name of other group companies and M/s AlconPharml Pharmaceuticals Pvt. Ltd. Bombay. He expressed tiredness and was allowed to continue giving statement after some rest. He stated that he did not want to comment on whether the amount of US$ 8200 had been paid as a difference of the invoice and the actual value. It therefore follows that the Appellant was at liberty of denying certain details and of not expressing opinion on certain other matters. The Appellant gave his statements as explanations to the documents recovered from his premises and those from the premises of his business associates. Since the statements of the Appellant were made in the situational context of recovered documents, the evidence brought on record by way of retracted confessions stand corroborated by independent cogent evidence. 12. As laid down by the Hon'ble Supreme Court in the case of Vinod Solanki Vs Union of India [(2008) 16 SCC 537]in such situation retracted statement of the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t even in passing a detention order on the basis of an inculpatory statement of a detenu who has violated the provisions of the FERA or the Customs Act, etc. the detaining authority should consider the subsequent retraction and record its opinion before accepting the inculpatory statement lest the order will be vitiated." We have already noted the contents of the statements made by the Appellant as well as the circumstances under which he tendered his statements in the preceding paragraph.We therefore agree with the Ld. Adjudicating Authority that the statements made by the Appellant were true and voluntary. 13. We do not find that the SCNs were vague and baseless. We have perused all the SCNs and find that there is an Annexure to each of the SCN. Annexure list the documents which have been relied upon and include statements, documents seized specifying the premises from which recovery was made, bank draft, diary marked M with specific page therein, fax message and transcript of bank account. Since the documents recovered and seized were referred in the various statements which have been relied upon, we are unable to agree to the proposition that unless the documents are specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re recorded and otherwise with whom the statements were recorded and otherwise with whom any enquiry was made, as a matter of routine. All the relevant material collected in the course of the investigations has been cited in the SCN and only disclosed to the noticees. It was, therefore, entirely upto the noticees to come out with the defence keeping in view the charges and the material/ evidence disclosed to them. It is not the case of the noticees that the officers who recorded the statements had acted out of malice, prejudice or bias. No case has also been made out to prove similar intentions on the part of the other witnesses or otherwise. I have, therefore, no hesitation in rejecting such requests as no useful purpose would be served by acceding to the request and only the proceedings will get protracted." In this regard, the Hon'ble Supreme Court has made the following observations in paragraph 28 of the judgment Telstar Travels Private Limited &Ors. V. Enforcement Directorate, (2013) 9 SCC 549. : " 28. Coming to the case at hand, the adjudicating authority has mainly relied upon the statements of the appellants, and the documents seized in the course of the search of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed having done any under invoicing in the remaining consignments imported on previous occasions in the name of other companies. He specified box files E & F as containing the details of the imports done by him in the name of Centaur Chem. With respect to other documents he stated that these related to other companies for which he was doing local sales. 18. The Appellant in his statement stated that the differential amount of US$ 114, 150 arising out of under invoicing of 32 consignments of Carbamezapine was paid to the suppliers abroad by his sister Ms. Seema Shah residing in New York. He had indulged-in aforementioned under invoicing to save on customs duty. He clarified that for the suppliers abroad the payment was made by his sister on his request. He till date had not paid back the amount to her. 19. Ld. Counsel for the Appellant argued that the case of under invoicing could only be held established if there is evidence to show that the contemporaneous imports of comparable quantities have been made at higher prices then those paid by the Appellant. The Judgments cited by him have placed the burden on the Customs Department to establish the under invoicing in the aforemention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Shri Shailesh Shah has further submitted that the amount of Rs. 150, 000 utilised by him and the instructions to make payments to various persons were received by him from Shri Prakash Shah, a non-resident while the latter was in India on a visit is clearly an after thought and deserve no credence. Moreover, no documents like encashment certificates to indicate that the said amount was the sale proceeds of any foreign exchange by the said Shri Prakash Shah during his visit to India or obtained by him through any other legal source has been furnished. Even otherwise, the distributed should be owned by the distributor to make it fall within the ambit of Section 9 (1) (d) ibid. The said section clearly speaks about any person resident outside India irrespective of the fact that the instructions to make payment were sent from abroad or given while the said non-resident was in India. " 22. We find that the Appellant referred in his statement to fax message from James Mathew, New York to his brother-in-law Shri Prakash C. Shah who was also resident abroad in his statement. The fax message was recovered during the search of his premises. The message was forwarded by his brother-in- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein the Appellant has been charged for attempting to make payment of US$ 8200 by issuing instructions to Canara Bank to make draft in the name of M/s IndukernChemie AG, Switzerland.Ld. Adjudicating Authority found the charge of contravention of Sections 9 (1) (a) r/w 64 (2) of FERA to be established. Similarly, Ld. Adjudicating Authority held the charge of contravention of Section 9 (1) (a) invoked in SCN VI dated 11.08.1995 to be established as the Appellant used the NRE Account of Shri Ritesh Shah to make payment of US$ 9800to M/s IndukernChemie AG, Switzerland. In this regard, with respect to the 2 aforementioned SCNs the Ld. Adjudicating Authority made the following observations: "The fact of credit of US $ 10, 000, US $ 300, US $ 200, US $ 2000, and US $ 2000 is not in dispute. Further the conduct of the said Shri Shailesh Shah in refusing to reply to the question as to whether the said draft of US $ 8200 represented the part payment of differential amount arising out of under invoicing, his making himself unavailable for investigation by the Dept. speaks for itself. The credit of such large amounts as mentioned in the foregoing para within a short interval and the too b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he acquisition otherwise of US $ 48, 060 and for making payment of the said amount to M/s IndukernChemie AG, Switzerland without general or special exemption of the RBI. The Appellant was charged for the import of 1703 kgs of Carbamezapine in the name of M/s Suru (P) Ltd, Mumbai and 1500 kgs of Carbamezapine in the name of M/s Alcon Pharmaceuticals (P) Ltd. Mumbai, during 1991 to 1994 with an under valuation to the extent of US$ 48, 060. 30. Ld. Adjudicating Authority specifically noted in the Impugned Order dated 31.03.1997 that the Appellant denied in his statement dated 06.08.1994 that he had not done under invoicing of the Carbamezapine imported in the names of M/s Suru and M/s Alcon. He observed that there are statements of co-noticees who have implicated the Appellant. However, like in the Impugned Order dated 30.03.1999, Ld. Adjudicating Authority denied the opportunity of cross examination of the co-noticees. We are therefore choosing not to rely upon such statements. Ld. Adjudicating Authority further held that the documents seized in this regard from various premises lead to the inference of involvement of the Appellant in the under invoicing of the import of Carbamezapi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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