9911796707
TMI Blog2003 (10) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... d have been imposed penalties of Rs. 49,000 and Rs. 67,000 respectively for these contraventions. Both the appellants have deposited the amount of penalties. The appeals are, therefore, taken up for hearing on merits for final disposal. There have been delay of about one month in filing these appeals. The appellants have submitted that they could not file appeal due to their illness which is duly certified by medical certificate annexed to the application for condonation. The delay is within the permissible delay which can be condoned if the Tribunal is satisfied that the appellant could not file the appeal in time beyond his control. Having given my careful consideration to the averments made in the condonation applications duly supported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he was getting involved in violation of FERA. All these facts were pleaded before the learned adjudicating officer but the same do not appear to have been given any consideration by the learned adjudicating officer. He borrowed the money and pre deposited the amount of penalty with the hope that ultimately justice would be meted out to him and the penalty amount so deposited would be refunded back. It has further been stated by the appellant that apart from his own statement, there is no evidence and he has cooperated with the respondents in the investigation and stated the whole truth. The appellant has further stated that the learned Additional Director of Enforcement failed to appreciate that the involvement in question was involvem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this amount. 6. Shri T.K. Gadoo, DLA appearing on behalf of the respondents, defended the impugned order stating that the appellant have on their own admitted the alleged receipts/payments. In view of this, no fault can be found with the impugned order. He further submitted that it is well established in law that ignorance of law is no defence. In any case mens rea is not an essential constituent of the alleged contraventions. Shri Gadoo further submitted that the learned adjudicating officer has already taken a sympathetic view as is reflected in imposition of nominal penalties. Once the seized amount is found to be involved in the alleged contravention there is no escape from directing its confiscation and therefore the seized amount ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate on the part of the accused is required. It is further laid down that the Court shall presume the existence of the mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged. In the case of Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holdings Ltd. AIR 1981 SC 1298, the Supreme Court has held that all the conditions to a licence or permit may not be of the same importance or rigour but when a condition which is vital is breached it would result in an offence. In other words, mere breach of condition would not ipso facto result in contravention. In the present case as mentioned hereinabove the evidence indicates irregularity or a breach but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icious manner which means that he could not act arbitrarily or capriciously. In a number of cases, the adjudicating officers have not directed confiscation of seized amount in similar circumstances against which the Director, Enforcement has filed revision petitions. Reference in this regard may be made to the orders of this Tribunal in R. P. Nos. 321/03 to 325/03 whereby it has been inter alia observed that there has to be application of mind and good reasons for directing confiscation of the amount as the same cannot be directed in a mechanical manner. 9. From the above said, it can be seen that every breach of rules may not be viewed as a contravention and every contravention may not be given an uniform treatment in a mechanical manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiscation of the seized amount was warranted. In the facts and circumstances of the case and for the reasons stated above, I am of the considered view that the penalties imposed to be on higher side and needs to be reduced. I accordingly direct that the penalties respectively imposed on the appellants under the SCNs to be reduced to 15% respectively. I also do not find the confiscation of the seized amount tenable in the facts and circumstances of the case and therefore directed its release. The impugned order is accordingly modified to this extent. The amount of penalties payable hereunder shall be adjusted against the penalty amount pre-deposited by the appellants and the balance thereof be forthwith refunded to the appellants. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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