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TMI Blog2006 (11) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... irectorate whereby the respondent is absolved of the charges of making payment of Rs. 5,60,000 to or for the credit of one Shri N.N. Gupta resident outside India from whom the respondent Abid Malik took a gift cheque of Rs. 5 lakhs from his NRI account No. 320170459 maintained with American Express Bank, New Delhi. We have heard Shri A.C. Singh, ALA on behalf of the Enforcement Directorate and Shri S.K. Mittal, Chartered Accountant on behalf of the respondent. Shri S.K. Mittal, Chartered Accountant has also filed written submissions which are taken on record. 2. According to Shri A.C. Singh, ALA for revisionist, the adjudicating authority has not appreciated correctly the legal proposition that re-tracted confession is also acceptable till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only 45 days. Therefore, this revision petition is liable to be dismissed on the grounds of delay when no condonation application is filed along with the revision petition. Another contention is that adjudicating authority has clearly brought out that there is no evidence of making payment to or for the credit of a non-resident person hence violation of section 9(1)(a) FER Act is not committed. Lastly, it is argued that revision petition has raised misleading grounds and adjudicating authority has correctly arrived at the conclusion of acquittal because the evidence on record does not support any contrary view. 4. The revision petition has been filed within a period of 100 days when there is no period of limitation is prescribed under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cceptance is proper and essential. Therefore discarding the evidence of this important nature is totally bad law. 6. Merely because the appellant made the confessional statement before Enforcement Directorate, the confessional statement cannot be ousted from consideration. The pleaded duress is required to be narrated and explained in sufficient details that how and in what circumstances such duress came into existence. The retraction of a confessional statement is experienced daily by Courts and Tribunals. The retraction letter does not disclose the type and nature of duress. The bare statement alleging duress cannot exclude that confessional statement altogether from consideration. The appellant was telling a lie at one occasion either wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssional statement without further slightest evidence of practice of threat and duress is of little avail to the respondent. Merely bald statement of threat and duress will not lead anywhere. But some little proof is required to be made. The respondent has totally failed in leading such proof. Therefore, the confessional statement can be accepted and it is not totally effaced from the scene. In this regard reference can be made to the judgment of the Supreme Court in K.I. Pavunny v. Asstt. Collector (HQ), Central Excise Collectorate [1997] 3 SCC 721. The adjudicating authority has brought out that what further evidence could have been collected but has committed grave error while looking towards the legal effect of the evidence available. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter is remanded back to the adjudicating authority of fresh adjudication. Therefore this Tribunal has taken upon itself to decide the matter. 10. Looking towards above, situation the respondent is wrongly acquitted when he made payment of Rs. 5,60,000 in lieu of a cheque of Rs. 5 lakhs. A conclusion of guilt necessarily follows and a proper amount of penalty is required to be imposed against him. Though amount involved is on the higher side but the respondent does not appear to be a hawala racketeer. Therefore the appropriate penalty cannot be excessive and exorbitant in this situation. Hence this Tribunal feels that a penalty of Rs. 3 lakhs against the appellant will be sufficient to serve in the interest of justice. 11. For the reasons s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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