9911796707
TMI Blog2008 (12) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 24,00,000. The appellant Mohan of M/s. Kandan Mohan Exports has made a payment of Rs. 10,000 and K. Sadasivam of Rs. 45,000 in compliance of order of Hon'ble High Court dated 9-11-2006 as against the order of this Tribunal dated 19-2-2006 directing the appellants to make payment of 20 per cent of the amount of penalty. The written submission is filed by the appellants which is taken on record. Presently, these appeals are taken up for final disposal on merits. The appeals have arisen from common Adjudication Order hence they are heard and disposed of by common order. 3. Briefly stated, the facts giving rise to these appeals are that during the search of the premises of one firm, M/s. Shamina Deluxe Theatre, Karaikal by Enforcement Officers on dated 27-11-1997 certain documents incriminating the appellants were seized. The statement of K. Thirugnanasambandam, the proprietor of M/s. Shamina Deluxe Theatre was recorded and on the basis of information made available by K. Thirugnanasambandam and the documents seized from the said firm, the premises of M/s. Anbu Textiles and M/s. Kandasamy Silk Mills were also searched on 1-12-1997 which resulted in seizure of certain incrim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as, Advocate for the appellants and Shri A.C. Singh, DLA, for the respondent and gone through the record, relevant law and judicial pronouncements carefully. It is argued by Ld. Advocate, Shri Joshi N. Thomas, that the charges under sections 9(1)(b) and 16(1) have been wrongly levelled against the appellants. There is no evidence that the goods exported were under-invoiced by the appellants. The judgment was self-contradictory where the Adjudicating Officer mentioned at P. 3, of the order that the goods under exports were under-valued, and as against it, it was mentioned at P. 6, that goods exported were over-invoiced. No meaning could be conveyed from such contrary observations. It has wrongly been observed by the Adjudicating Officer that the appellants were entitled to receive foreign exchange or payment in rupees. The documents have been seized from third parties who were not jointly tried with the appellants and the documents could not be read against them. Reliance is placed on the ruling of Motiarani case, 1983 Crl. L.J, 590 and it is alleged that the documents seized from third person could not, be relied against another person. 7. It is further argued on behalf of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign exchange or payment, as the case may be. 10. Thus under section 16(1) of FER Act, 1973 a person who is entitled to receive foreign exchange, from a person resident outside India, is under an obligation to assert his right to receive such foreign exchange and demand payments as and when due. If such person does not take steps to recover that amount from a person abroad he may be guilty of having committed a breach of this section. This section is intended to ensure that any person who has a right to receive any foreign exchange shall not refrain from doing anything which may delay or result in the payment ceasing to be received or receivable in India. However, the case against the appellants is a follow up case, where with the recovery of seized documents from the premises of the firm M/s. Shamina Deluxe Theatre and the information made available by its proprietor, K. Thirugnanasambandam, the investigations were conducted against the appellants and their firms. The appellant, K. Sadasivam, admitted in his statements that the appellants were indulged in under-invoicing of the exports where the declared value of the goods was received through banking channel and the different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. It is contended on behalf of the appellant that the confessional statements of the appellants were not voluntary and obtained under coercion and threat. However, the burden of proving the fact that the statements were so recorded under compulsive means was on the appel- lants themselves which they have not been able to discharge. Whenever a statement is challenged as having been obtained by unfair and unlawful means, law cannot presume that it has been so obtained. It must be shown to have been obtained by such unfair means and that it was not voluntary. The appellants have not produced any material to indicate that the statements were obtained under duress and by inducement. The retraction of the said statements where there is nothing to support the case of the appellants cannot be of any avail to the appellants. There is mere bald statement where no inference can be drawn in his favour. K.T.M.S. Mohd. v. Union of India [1992] 3 SCC 178 can be referred here wherein the Supreme Court observed as follows: We think it is not necessary to recapitulate and recite all the decisions on this legal aspect. But suffice to say that the core of all the decisions of this Court is to the eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base the conviction. However, prudence and practice require that court would seek assurance getting corroboration from other evidence adduced by the prosecution. (p. 742) 14. The bald assertion of threat and coercion while retracting admissional statement cannot be taken seriously unless a little evidence is produced leading to probability of threat and coercion whereafter the burden of proving other way round can be shifted to Directorate of Enforcement. The incriminating documents recovered in this case, and the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be read against the appellants. 17. In my opinion, the facts, and evidence in this case coupled with circumstantial evidence are sufficient to substantiate the charge against the appellants for contravention of sections 9(1)(b), 16(1) of the FERA, 1973 and they have rightly been held guilty by the Adjudicating Officer. It is established from the evidence on record that the appellant in appeal No. 122/06, K. Sadasivam was the partner of the appellant firm M/s. Anbu Textiles, during the relevant period who was responsible for the day-to-day functioning of the said firm. So far as the amount of penalty against the appellant firm M/s. Anbu Textiles is concerned, it will be appropriate to mention the ruling of the Hon'ble High Court of Kolkata in Tarak Nath Sen v. Union of India AIR 1975 Cal. 337 where it was observed by the Hon'ble Court that partnership firm is a compendium name of its partners and both cannot be held guilty for the same contravention simultaneously. In view of the observations made by Hon'ble High Court in the aforesaid ruling, I am of the view that, it will be appropriate to realize the penalty amount only from the appellant partner and to absolve firm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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