9911796707
TMI Blog2006 (9) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... Director to the tune of Rs. 4,42,000. In the memo of appeal it has been mentioned by the appellant on page 2 that the amount of penalty has been fully paid by the appellant. Presently, the appeal is taken up for final disposal on merits as the learned counsel of the appellant Shri Onkar Nath Chatopadhyay has already made a request by moving an application that the appellant is not financially capable to appear before this Tribunal for contesting his matter which may be decided on merits on the basis of written submission filed by him. 3. In brief the facts against the appellant are that the business place and residence of appellant were searched by the officers of Enforcement Directorate on dated 9-12-2002 where incriminating documents and foreign exchange to the tune US $14,130, U.K. Pound 180, Singapore $ 80, Australian $ 120, BD Taka 1,000, Euro 150, Thai Bhat 100 and Saudi Riyal 500 and Indian currency of Rs. 3 lakhs and two gold biscuits were recovered and seized from his custody. After completion of investigation 7 SCNs were issued against the appellant where the appellant was charged for unauthorized selling and purchasing of foreign exchange for making payment to a person, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted. It is argued that the impugned order is liable to be confirmed. 6. I have carefully considered the submissions made by learned DLA and gone through the material available on record and relevant law on the point. The SCN I deals with seizure of foreign exchange. SCN II with seizure of Rs. 2,00,042, SCN III for illegal sale and purchase of foreign exchange without permission of RBI, SCN IV relates to failure to take reasonable steps to realize foreign exchange equivalent to Rs. 8,000 and SCN VII with purchase of gold from sale proceeds of foreign exchange. For the sake of convenience we shall first deal with these SCNs. The appellant made a confessional statement on 9-12-2002 that he used to purchase and sell foreign exchange from his shop M/s. Beauty Handicrafts during the period from dated 9-7-2002 to dated 1-8-2002. With reference to seized foreign and Indian currency and gold and documents he explained the source of acquisition of these currency and gold on the basis of documents seized from his shop and residence. The appellant also made statement on 7-3-2003 and 12-3-2003 and gave clarifications of certain pages of documents seized. The appellant retracted from his confes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no need to verify the writings of seized documents from handwriting experts. 8. The Adjudicating Officer has rightly observed that SCNs were issued against the appellant after considering the complaints after applying his mind to the facts of the case in accordance with the procedure established by law and in fact the plea has been raised by the appellant about issuing of SCNs without considering any complaint etc. has been made to unnecessarily complicate the issue. 9. The appellant has specifically admitted in his statement that the seized foreign currency was purchased by him from various persons, mostly from the people of Bangladesh after Id Mubarak at a rate different form rate of RBI. The confessional statement is fully corroborated by recovery of substantial amount of foreign exchange, Indian currency as well as gold biscuits and incriminating documents seized from the custody of the appellant. Indian currency totalling to Rs. 3 lakhs was also recovered from the shop of the appellant in respect of which the appellant admitted that the amount of Rs. 2,00,042 was acquired by him from sale of US $4025 on 9-12-2002. The appellant failed to produce any documentary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its opinion for rejection. 12. The retracted confessional statement may constitute the basis of conviction provided it is sufficiently corroborated in material particulars as it has been observed by the Supreme Court in K.J. Pavunny v. Assistant Director (HQ) Central Excise Collectorate, (sic) [1977] 3 SCC 721, where the following observations have been made : It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case... . 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. 13. In the present case the charges from I to IV and VII against the appellant for sale and purchase of foreign exchange and failure to realize Rs. 8,000 for purchase of gold have been fully proved by his confessional statement which though retracted have been fully corroborated by documentary evidence, by the recovery of substantial amount of foreign exchange, Indian currenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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