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TMI Blog2004 (8) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... to any person nor any person in India is named, hence, the Appellant deserves full dispensation of the pre-deposit of the penalty. After hearing the parties, dispensation was allowed by Order dated 15-7-2004 against pre-deposit of the penalty. Presently, the Appeal is taken up for hearing and disposal on merits. As learned counsels representing both parties have filed their written submissions so the same are taken on record. 3. A Show-Cause Notice (hereinafter called SCN) No. T-4/46-C/99-SCN-IX dated 28-5-2002 was issued along with 7 relied on documents to the Appellant asking him to show cause why adjudication proceedings should not be held against him for the reasons that the Appellant had arranged foreign currency of US dollar (1) 44,000, (2) 46,33,000 and (3) 48,000 to be received in Hongkong by M/s. Cecil Corporation through M/s. Far East Enterprises and M/s. Al Tizarat by making arrangement of payments of equivalent amount in Indian currency to certain persons in India in contravention of the provisions of 9(1)(f)(i) of the FER Act, 1973. The relied on documents to the SCN are (1) Certain documents seized by Income-tax from the premises of Shri S.M. Agarwal (2) Central Fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xchange Regulation Act, 1973 (46 of 1973), is hereby repealed.... (2)****** (3) Notwithstanding anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act and no Adjudicating Officer shall take notice of any contravention under section 51 of the repealed Act after the expiry of a period of two years from the date of the commencement of this Act. 6. Secondly, learned counsel argued that photocopy of any document cannot be accepted as relied on documents. The photocopy of the entry allegedly made in the books of M/s. Cecil Corporation are neither recovered from the premises of the Appellant nor are original documents so cannot be the basis of any adverse decision against the Appellant. In this regard, reliance is placed on the Supreme Court judgment in Collector of Customs v. East Punjab Traders 1997 (89) ELT 11. 7. Though advanced initially on behalf of the Appellant, but learned Counsel did not press the first and second arguments narrated above. Also, no reply to them is given on behalf of the Respondent. Hence, these two arguments are left here without any further discussion. 8. The last argument made with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted to (a) make payment to any person or to any person s credit or (b) receive any payment by order or on behalf of any person (c) as consideration for receipt of any payment or acquisition of property outside India by any person outside India. This in short is called compensatory payment. From this description, it is clear that these provisions prohibit compensatory transfer or payment between persons in India against a consideration of transfer of cash or property acquired outside India. 10. This Tribunal has gone through different paragraphs of the Adjudication Order with the help of learned counsel for appellant but could not locate anywhere any piece of evidence described therein much less than decisive testimony wherefrom payment in India can be gleaned through or proved to have been made/arranged by the Appellant. Not a single statement made by any of the persons listed in relied on documents states that payment is made and of how much amount or to whom and where and in what manner. Hence, this appears to be a case of no evidence rather than of insufficient evidence. 11. On behalf of Respondent, Learned Senior Counsel Shri A.K. Panda cited Supreme Court Judgments in (1) Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel further lead this Tribunal to the Judgment and Order passed by Patna High Court in Sushil Kumar Modi v. State of Bihar [CWJ No. 1617 of 1996] and more particularly page 6 of the said Judgment (filed by respondent before this Tribunal) where Hon ble High Court has observed that Directorate of Enforcement is also required to investigate the angle of FER violations. Nowhere in this Judgment and Order, anything is stated with regard to compensatory payment allegedly made by Appellant to Indian persons in Indian territory in lieu of or as consideration of payments received/receivable in Hongkong. Nor any evidence with regard to making payment as aforesaid is identified or discussed. The Court only dealt with different aspects of investigation in a matter commonly known as fodder scam case. 14. This Tribunal has gone through the statement recorded under section 164 Criminal Procedure Code, 1973 by Special Judge Patna of Dipesh Chandok where time and again he stated that payment was made of particular huge amount or of some percentage to appellant but that by itself does not constitute violations of the provisions of section 9(1)(f)(i) of FER Act, 1973. Another statement looked into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Evidence Act where normal course of human conduct or natural events of public and private business leads to adverse inference if particular happening is not explained. Such position has not arisen in this Appeal and the citations pressed by learned Senior Counsel are inapplicable and distinguishable on facts. 18. In Kanungo Co. v. Collector of Customs [1973] 2 SCC 438, the factual position is of recovery and seizure of watches, hence, Hon ble Supreme Court shifted burden of explanation of such recovery and possession to the Appellant. The Delhi High Court Judgment in Prem Singh Chawla v. Directorate of Enforcement 1987 Cr.LJ 1579 is also cited arguing that recovery of cash, several documents, account books and diaries with admission of receipt of 9 instalments in cash by appellant is sufficient proof for arriving at guilt till the appellant is unable to furnish valid explanation to the contrary. This is not the position in present appeal where payment in India is not brought forth from direct or indirect evidence. 19. Certain sentences and paras are emphasized out of cited judgments as deciding without reference to facts, the proposition of law laid down therein. This approach of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enning in the matter of applying precedents have become locus classicus : Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. ****** Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it. 20. Respondent has not brought any evidence on record testifying compensatory payments in India by Appellant in lieu of alleged payments received in Hongkong. The proof of receipt of payments in foreign exchange by Appellant in Hongkong itself is lacking but it needs no discussion here because of peculiarity of allegation under section 9(1)(f)(i). As stated in para 10 above, this is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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