9911796707
TMI Blog2008 (8) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of penalty has been paid by the appellant in appeal No. 530/2004 in compliance of the order of this Tribunal dated 16-9-2004 where these appeals are taken up for final disposal on merits. 3. Briefly stated the facts giving rise to these appeals are that on receiving certain reliable information the office premises of the appellants was searched by Enforcement Officers on 12-4-1995 and 13-4-1995 where certain incriminating documents were recovered. The appellant, H. Ameer was not found available at the time of search and statement of his brother, H. Kamal Batcha were recorded on 13-4-1995 and 14-4-1995 who stated that he was not visiting the shop run in the name of the firm, M/s. Photokina which was managed by his brother H. Ameer and he could explain the seized documents. The partner of M/s. Photokina, Mustafa Kamal was also examined by the Enforcement Officers who stated that sheet Nos. 1 and 2 of bunch A were written by H. Ameer and he could only explain them. Sheet Nos. 4, 5 and 6 were written by A. Riyasuddin, Manager of M/s. Associates Builders, which related to the loans taken and the amount received from sale of flats. Sheet No. 5 related to a loan of Rs. 12,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d guilty by the Adjudicating Officer where being aggrieved these appeals are preferred by the appellants. 7. It is argued by ld. Counsel on behalf of the appellants that the impugned order was based on surmises and conjectures. The statements of the third parties have wrongly been relied upon by the Adjudicating Officer where the appellants were not permitted to cross examine such third parties. The ingredients of section 9(1)(a), 9(1)(c) and 9(1)(e) were not proved against the appellants. The documents recovered from office of M/s. Micam Leather Exports Ltd. were not admissible who were not jointly proceeded with the appellants for the same cause of action. The appellants have never given any statement that they had ever taken any loan from Shri N.C. Rangesh with the knowledge that N.C. Rangesh had become person resident outside India during relevant time. The show-cause notice was very vague and necessary particulars were not given in the SCN. The statements of H. Kamal Batcha and Mohamed Abubacker Siddique were relied upon under the impugned order, which were not mentioned in the show-cause notice. It is argued that the impugned order is liable to be set aside and the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s created or transferred in favour of any person resident outside India; (e) place any sum to the credit of any person resident outside India. Thus under statutory scheme contained in section 9(1)(a), (c) and (e) of the FERA, no person shall make any payment to or for the credit of any person resident outside India or acknowledge any debt so as to create right in favour of person resident outside India or place any sum to the credit of any person resident outside India. 10. However in the instant case, it is an admitted fact that a loan of Rs. 12,00,000 was taken by the appellants from N.C. Rangesh, Advocate in 1994 who was a person resident outside India since 1993, which was paid back to him in 1994. The subject transaction was of a substantial value where the averment of appellants, that they have no knowledge about the status of the Advocate from whom they had taken that loan is not acceptable particularly when the association of the appellants with N.C. Rangesh is not denied who was counsel of the appellant before I.T. Authority. From letter dated 17-3-1994 of N.C. Rangesh addressed to Assistant Commissioner of Income-tax Deptt., it is clear that N.C. Rangesh was contesting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice, the letter cannot be ignored merely on the ground that M/s. Micam Leather Exports Ltd. was not jointly proceeded against the appellants where the associations of the appellants with M/s. Micam Leather Exports Ltd. is established. 13. The long association between the appellants and N.C. Rangesh is established from evidence of record. Admittedly N.C. Rangesh was working as lawyer of the appellants and representing them before the Income-tax Tribunal during the years 1993 and 1994. M/s. MLEL was occupying the premises owned by appellant, H. Ameer as his tenant on recommendation of N.C. Rangesh who has the chairperson of M/s. MLEL. In view of the long association of N.C. Rangesh with the appellant, H. Ameer, who was the in charge and responsible for the day-to-day functioning of M/s. Associated Builders and Developers during the period, I find no force in the contentions of the appellant that they had no knowledge about the non-residential status of N.C. Rangesh. The father of N.C. Rangesh deposed that he was residing in Singapore as permanent resident since 1993 who had no reason to falsely implicate his son or the appellants. From facts, evidence and circumstances of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of one side to prove, and in the power of the other to have contradicted . 32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the persons concerned in it. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. 37. For weighing evidence and drawing inferences from it , said Birch, J. in Queen v. Madhub Chander, (1873) 21 WR Cr. 13 at p. 19 there can be no canon. Each case presents its own peculiarities and in each common sense and shrewdness must be brought to bear upon the facts elicited . 15. In the instant case, it is not denied by the appellants that they have made payment of Rs. 12 lakhs to N.C. Rangesh towards loan. They have not discharged their burden about their having no k ..... X X X X Extracts X X X X X X X X Extracts X X X X
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