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TMI Blog2009 (12) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... mjibhai Tidabhai Parmar for contravention of provisions of section 8(1) read with section 8(2) of the Foreign Exchange Regulation Act, 1973. The penalty amount has already been adjusted from the seized amount. The appellant did not appear despite service of notice. Written submission is received from the appellant which is taken on record. Presently, this appeal is taken up for final disposal on merits. 3. I have heard elaborate arguments from Shri Jagat Singh, Advocate for the respondent and gone through the record, relevant law and judicial pronouncements carefully. The show-cause notice was issued against the appellant for having otherwise purchased US $6,000 from a person in India who was not an authorized dealer in foreign exchange and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the retracted confessional statement was without any independent material to corroborate it which could not be read against the appellant. It is requested that Rs. 20,000 may be refunded to the appellant. The appellant was not given the opportunity to cross-examine the concerned officers which showed non-application of mind on the part of the Adjudicating Officer. The order was not passed by the Adjudicating Officer for about eight months after hearing the arguments. He could not recall the oral arguments advanced by his Advocate which was against the principle laid down by Hon'ble Supreme Court. Independent investigations were required to be made by the Enforcement Officers apart from the investigation done by Custom Authorities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y foreign exchange from him since he was in need for money he fixed a deal of US $2,500 for Rs. 44,000 with the said person. Rs. 44,000 were seized from his house which he admitted was the same amount which was received against US $2,500. 8. The statement of Hasmukhbhai alias Chitubhai Sarang was recorded on 26-12-1988 by customs officers who deposed that he was residing in America for the last nine years who was serving in restaurant named Satar Club. He came to India in October, 1988, who declared nothing before the Custom Authorities. He sold US $2,000 to the appellant when he was in need of money through one Mahendra Shah who was driving the motor cycle. 9. Here it will be appropriate to mention sections 8(1) and 8(2) of the Foreign Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibits that no person shall enter into any transaction which provides for conversion of Indian currency into foreign currency or vice versa at rates of exchange other than authorised by RBI. It is submitted on behalf of the appellant that the confessional statement was retracted by the appellant stating that it was obtained under force and threat and retracted confessional statement was not corroborated by independent evidence and impugned order was liable to be set aside. However, the retraction of the said statements where there is nothing to support the case of the respondent, cannot be of any avail to the appellant. The bald assertion of threat and coercion while retracting admissional statement cannot help the appellant unless a lit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants for demanding cross examination. Here it will be relevant to mention the ruling of Supreme Court in Surjit Singh Chhabra v. Union of India [1997] 1 SCC 508 where the Hon'ble Court observed that the customs officials were not police officials and the cross examination of the witnesses was denied on the grounds of the failure of the noticee to give any sufficient reason for the same. The Court observed that the denial of the cross examination under such circumstances was not violation of the principles of natural justice. The principles of natural justice are not rigid and are not violated simply by refusal of cross examination. Therefore, refusal of cross examination cannot be termed as bad under the circumstances of this appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted to accept that part of his statement which favoured him and to reject the other part, i.e., recovery of foreign exchange which was against him which he cannot be permitted to do. 14. Thus, having considered the facts, evidence and circumstances of the case, I am of the considered opinion that the appellant has rightly been held guilty for contravention of sections 8(1) and 8(2) of the FER Act. Now coming to the question of quantum of penalty, I am of the view that it is not excessive and commensurate to the gravity of the charge involved, the impugned order withstands judicial scrutiny which is liable to be confirmed and upheld. The appeal is liable to be dismissed having no merits. An order is passed accordingly. The pre-deposited am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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