9911796707
TMI Blog2024 (9) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 2,70,96,000/- from persons resident in India by order of person resident outside India and by making payments of Rs. 2,70,14,712/- to persons resident in India by order of person resident outside India, without the general or special exemption of RBI. The Appellant Shri Mohammed Rafiq Ali Patel was held to have contravened Sections 9(1)(b) & 9(1)(d) read with Section 64(2) of FERA for abetting Shri Mustaq Mohd. Patel in receiving payments of Rs. 2,70,96,000/- from persons resident in India by order of person resident outside India and in making payments of Rs. 2,70,14,712/- to persons resident in India by order of person resident outside India, without the general or special exemption of RBI. 2. This Tribunal vide order dated 01.08.2008 observed the following:- " There is an admission of violation of FER Act, 1973, in clear terms by the appellants even before this Tribunal and hawala payment is clearly admitted. Looking towards this situation, it is not possible to agree that the appellants are not to be blamed. However, the appellants have pleaded financial disability but failed to disclose their assets, except saying that they are living in rented accommodation with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ali Patel. 4. Ld. Counsel mentioned that amendment to Appeal was submitted on 24.06.2014. Non supply of record relating to 'prior information' caused prejudice to the defence of the Appellant. It was never proved by the Department that hand writing on the loose sheets and the diaries were of either of the Appellants. There was no order issued by the Ld. Adjudicating Authority on their application for adjournment. No opportunity was given for cross examination of witnesses. The impugned order was not received till 07.08.2001 which is after two years and four months of its passing. The penalties are disproportionate. Ld. Counsel drew attention to the written submissions reiterating the points made in the Appeal and amendment to Appeal. He further drew attention to the revised written submissions reiterating the aforementioned points and bringing out the lacuna in investigation as well as in the impugned order. The written arguments were submitted on 07.08.2024. 5. Ld. Counsel for the Respondent contended that the Appellants did not join the proceedings of the Adjudication. In this regard he cited the following two paragraphs from the impugned order:- "After considering the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d stated that the documents seized from him belonged to noticee No.1 which comprised of details of payments received and disbursed by noticee No.1 as per the orders of the brother of noticee No. 1 who was a resident of Canada. Noticee No.1 in his statement had confirmed the facts given by noticee No.2 in his statement with regard to the seized documents. Noticee No.1 in his statement had further admitted that the details written in the diaries were written by him in his own handwriting This fact goes to settle the ownership of the seized diaries as those belonging to noticee No. 1. Based on the details such as the name & telephone Nos. of certain persons whose details were found written on the seized diaries the Department had conducted enquiries with few of such persons whose references were available in the seized diaries. In this connection I had given a careful consideration of the outcome of the enquiries/ investigation carried out by the Department against such persons as discussed earlier in this order. Sh. Natwarlal B. Patel (whose reference was available on page 47-C), Sh. Yogesh K. Bhatt (whose reference was available on 60-C) Sh.Manubhai R. Patel (whose reference was ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were seized from the residence of Sh. Mohd. Rafiq Ali Patel which clearly establish his involvement in the hawala transaction allegedly undertaken by noticee No.1 who in his statement dated 27.3.92 had admitted that he had engaged the service of his cousin Sh. Mohd. Rafiq Ali Patel (Noticee No.2) in disbursement of the payments. Sh Mohd. Rafiq Patel in his statement dtd 27.3.92 had also admitted that he had accompanied noticee No.1, twice for making payments. Sh Mohd. Rafiq Ali had even explained in his statement about the mode of decodation of figures written on the seized diaries which were proved to be correct as per the statements given by some persons who had received payments from noticee No.1 as discussed in this order. These facts goes on to establish that Sh. Mohd. Rafiq Ali Patel was one of the main associate of noticee No.1 in his alleged hawala transactions. I am therefore convinced that the charge against Noticee No. 2 for abetting Sh. Mustaq Mohd. Patel in receipt and distribution of amounts as mentioned in the SCN are proved and established beyond doubt. I therefore hold him guilty to the charge. However, it is not known whether Sh. Mohd. Rafiq Ali Patel had deserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the general or special exemption of RBI. The Ld. Adjudicating Authority also found that the Appellant Shri Mohammed Rafiq Ali Patel indulged in contravention of Sections 9(1)(b) & 9(1)(d) read with 64(2) of FERA for abetting Shri Mustaq Mohd. Patel in receiving payments of Rs. 2,70,96,000/- from persons resident in India by order of person resident outside India and in making payments of Rs. 2,70,14,712/- to persons resident in India by order of person resident outside India, without the general or special exemption of RBI. 8. We find from the record of the case that a number of opportunities were given by the Ld. Adjudicating Authority to the Appellants to present their defence during the course of the Adjudication proceedings. However, the Appellants chose to seek repeated adjournments on one ground or the other. The Ld. Adjudicating Authority was under no obligation to provide further opportunity for hearing just before passing the impugned order. Under the given circumstances, perforce the Ld. Adjudicating Authority passed the impugned order ex-parte. On this ground there is no violation of principles of natural justice. It is a matter of record that the Ld. Adjudicating Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the receipt of the said sum was from Shri Satishbhai of Canada. The statement of one Shri Manubhai R. Patel revealed receipt of Rs. 51,000/- from an unknown person on instructions of Shri Manubhai Ishwardas Patel of Canada. Yet from statement of another person Shri Yogesh Prablabhai Patel it is revealed that he received an amount of Rs. 30,000/- under instructions of his sister Rekhaben of Canada. Statement of one Shri Sabir Mansoori revealed that no payment was received by him from abroad. These investigations therefore corroborate that few of the persons named in the seized diary had received funds on instructions of persons/relatives living in Canada where the brothers of the Appellant Shri Mustaq Mohd. Patel were also residing. 11. The contention of the Ld. Counsel for the Appellants that the evidence collected cannot be regarded as independent is not acceptable. Not only documents have been recovered and seized from the premises of the Appellants but also from those who have been named in the seized documents. The Appellants by their non participation in the Adjudication proceedings cannot take advantage at the belated stage of the Appellate proceedings to ask for cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority while acting on the inculpatory statement of the maker is not completely relieved of its obligations in at least subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the authority or any court intending to act upon the inculpatory statement as a voluntary one should apply its mind to the retraction and reject the same in writing. It is only on this principle of law, this Court in several decisions has ruled that 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 note that the ld. Adjudicating Authority has considered the subsequent retraction and recorded its opinion before accepting the statements. We also find that the confessional statements have been corroborated by other independent and cogent evidence as have been brought out in the paragraphs from the impugned Order which have been cited afore while dealing ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
