9911796707
TMI Blog2024 (9) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was an entry relating to one Jazer, the Ld. Adjudicating Authority inferred that it revealed illicit purchase of foreign currency of US$ 16000 by the Appellant. He in his statement on 07.03.2005 attributed this entry to the transaction of 160 optical frames sold by him at the price of Rs. 48.60 per piece to the said Jazer. In view of this statement tendered by the Appellant under Section 37 of FEMA, we are inclined not to accept the finding of Ld. Adjudicating Authority that the contravention of Section 3(a) of FEMA has happened for the said transaction. Therefore, we are inclined to uphold the finding of the Ld. Adjudicating Authority that the Appellant indulged in contravention of Section 3(a) of FEMA but for a reduced amount of US$ 99,770 not US$ 1,15,770 as the charge for the contravention of US$ 16000 is not found sustainable. 17. Ld. Adjudicating Authority found no contravention of FEMA for the seized Indian currency of Rs. 9.29 Lakh which has not been confiscated. We set aside the confiscation of the foreign currencyWe order the release thereof to the Appellant. We also order, as prayed by the Appellant, to release the seized Indian currency of Rs. 9.29 Lakh which was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in holding from the seized passbook that the Appellant indulged in acquisition abroad of foreign exchange to the extent of US$ 5,95,739 Chinese RMB 5,78,079.80. He stated that the passbook did not reflect the account details of the Appellant. Ld. Adjudicating Authority failed to take into consideration the certificate from the concerned bank that the account holder was one Shri Ismail Kapadia. The certificate was duly authenticated by the Indian Embassy. The Appellant was given the passbook by Shri Feroz Kapadia to make reconciliation of the entries made since he was the coordinator of the business transactions undertaken by Shri Feroz Kapadia in India. Shri Feroz Kapadia was living in China for last few years. He contended that the passbook given by Shri Feroz Kapadia to the Appellant was not the one which was intended to be handed over since it belonged to Shri Ismail Kapadia and not Shri Feroz Kapadia, the cousin of the Appellant. Shri Feroz Kapadia was also engaged in other commercial activities including exports from China to countries other than India which do not concern the Appellant. He challenged that the allegation of Hawala cannot be made against the Appellant in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the visits abroad and so had his father and mother. Ld. Adjudicating Authority did not accept his explanation because he found that the released amounts were too meagre to meet his expenses abroad which were of long duration. Ld. Adjudicating Authority did not accept the seized foreign currency as left overs from his parents visits in the absence of other details. We are unable to persuade ourselves to agree with the inference drawn by the Ld. Adjudicating Authority. The answer to the question of the amount of money required to stay abroad is subjective. Moreover, the Appellant submitted on record copies of passport of himself, wife and parents with stampings of travel abroad. Copies of receipts of purchase of foreign exchange for couple of visits are also on record. The Notification No. FEMA 11/2000-RB dated 03.03.2000 notifying Foreign Exchange Management (Possession Retention of Foreign Currency) Regulations, 2000 stated at Regulation 3 (iii) the following:- retention by a person resident in India of foreign currency note, bank notes and foreign currency travellers cheques not exceeding US$ 2000 or its equivalent in aggregate, provided that such foreign exchange in the form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te explanation as to how this passbook of the Chinese bank account remained in his possession. The facts as discussed above thus reveal that Shri Vaseem Kapadia was the person arranging the funds, which were found credited in the said account. The facts available on record further suggests that Shri Vaseem Kapadia was also operating the said bank account in Hong Kong to facilitate the payment against the acquisition of foreign made goods by him. His frequent visits to China, as evidenced through the entries in his passport and his very own admission that the credits in this bank account were arranged by him by giving money to persons/representatives of Mr. Kapadia of China for items which were caused to be imported/acquired by him, further strengthen this fact. Even-though he had stated that no imports were made by him from China, his frequent visits to China and the existence of various E-mail messages found and retrieved from his email inbox/outbox of his computer, go to establish the fact that he was arranging the import/acquisition of Sun glasses and frames form various Chinese suppliers and was making payment directly to them in the aforesaid manner. 11. The Hon ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. We have already noted the contents of the statements made by the Appellant. He tendered the statement on 10.02.2005 under Section 37 of FEMA. His statement was in the nature of the explanation he gave about the recoveries which had been made during the search of his premises. While his explanation for the seized foreign currency has been accepted by us, the same would apply to the explanation which he tendered for the recovery of the bank passbook as well as the e-mails recovered from his computer which will be discussed in the subsequent paragraphs. Thus the content as well as the circumstances under which he tendered his statement leads us to agree with the Ld. Adjudicating Authority that the statements made by the Appellant were true and voluntary. Since the statement of the Appellant is corroborated by the independent and cogent recovered from his own premises, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... howed a deposit of US$ 100 in the said account. The Appellant deposed in his statement dated 10.02.2005 that he had not taken permission from RBI to open the account. However, he had subsequently produced a letter requesting the HSBC Bank to close the account. 15. From page No. 1 of notebook marked B seized from the resident of the Appellant on which there was an entry relating to one Jazer, the Ld. Adjudicating Authority inferred that it revealed illicit purchase of foreign currency of US$ 16000 by the Appellant. He in his statement on 07.03.2005 attributed this entry to the transaction of 160 optical frames sold by him at the price of Rs. 48.60 per piece to the said Jazer. In view of this statement tendered by the Appellant under Section 37 of FEMA, we are inclined not to accept the finding of Ld. Adjudicating Authority that the contravention of Section 3(a) of FEMA has happened for the said transaction. 16. Therefore, we are inclined to uphold the finding of the Ld. Adjudicating Authority that the Appellant indulged in contravention of Section 3(a) of FEMA but for a reduced amount of US$ 99,770 not US$ 1,15,770 as the charge for the contravention of US$ 16000 is not found sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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