9911796707
TMI Blog1999 (9) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant in appeal No. 167 of 1997 and a penalty of Rs. 6 lakhs has been imposed on Noor Alam, the appellant in appeal No. 178 of 1997. Being aggrieved the appellants have come up in these appeals impugning adjudication order No. 12-13/ADJ/97-DD(AKA)/1504 of 19-3-1997. 2. Appellants petitions seeking waiver of predeposit having been disposed of by interim orders of 15-9-1998 and 24-6-1998, this common order disposes of the appeals. 3. Shri R.K. Handoo, the Advocate appearing for Imran Ahmed submitted, at the outset, that a mere perusal, of the impugned order would show that the learned Adjudicating Officer had hardly held an inquiry into the charges as mandated by the provisions of section 51 of the Act and those of the adjudication proceedings and Appeal Rules, 1974. He submitted that while taking note of the ingredients of the charge and examining as to whether there is any evidence and if so whether it substantiate those ingredients, the adjudicating authority made the impugned order in the most perfunctory manner without giving any cogent reasons for arriving at the findings. He further submitted that the impugned order is liable to be set aside for violation of the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the entire adjudication proceedings were vitiated for the fact that the documents cited as evidence by the department were never made available to the appellant though he made a specific prayer in that regard. He submitted that merely giving an opportunity for inspection of the document is not adequate. In any case, Shri Singh submitted that the document seized from Imran Ahmed is not admissible and there is nothing incriminating in the documents seized from the appellant. In the circumstances, the only evidence that has been relied on by the learned Adjudicating Officer is appellant s own statement of 1-11-1995 which was recorded by the officers of the Enforcement Directorate immediately after the search of appellant s premises when he was in their custody. Shri Singh also submitted that even though appellants statement cannot be the sole basis for holding him guilty of the charges, there is nothing even in that statement to sustain the charge. Shri Singh further submitted that the statement is in the most general terms and the department has not made any investigation about the identity of the non-resident and identity of the persons to whom the appellant had allegedly paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon and multiplicity of proceedings be avoided. 8. The investigation against the appellant in this case proceeded on the basis of search of residential premises of one Shamim Ahmed on 20-11-1994 and seizure, among other documents, four loose sheets numbered as pages 11, 15, 26 and 27 in the bunch of sheets marked H . Appellant s name together with his address appears on these pages. It appears that the Enforcement Officers got a statement of Shamim Ahmed recorded on 22-11-1994 in which he is stated to have disclosed information regarding certain payments to the appellant in violation of the provisions of the Act. Consequently, based on this material, the department searched the premises of the appellant on 30-10-1995 and recovered and seized certain documents. The officers of the Enforcement Directorate got a statement of Imran Ahmed recorded on the same day i.e. on 30-10-1995 and another statement on 1-11-1995. The proceedings were initiated against the appellant with the issue of the SCN II impugned herein. In the SCN, the Department has relied on Shamim Ahmed s statement of 22-11-1994 and four loose sheets from amongst the documents seized from his premises. The Department also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere to dispose that the documents indicate the amounts paid by him to Imran Ahmed, Imran Ahmed would have had an opportunity to cross-examine him. Shamim Ahmed would have been required to Indicate the factual details about the alleged payment and then it would have been Imran Ahmed s burden if he were to deny the receipt of payment, to controvert the allegation by appropriate evidence. However, in the present case, instead of holding joint adjudication proceedings against Shamim Ahmed and Imran Ahmed, the learned Adjudicating Officer held joint proceedings against Imran Ahmed and Noor Alam, though there is no nexus between the two. Each of them have nexus, according to the allegations, independently with Imran Ahmed. The impugned joint proceedings were, therefore, misconceived. If the decision to hold a common adjudication proceedings were guided by the fact that the allegations in both the cases were similar. It should also been appreciated that the similarity of the allegations depended on the allegation that both Imran Ahmed and Noor Alam had received alleged amounts from Shamim Ahmed. Therefore without proceedings against Shamim Ahmed in the same proceedings the common proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eof the Adjudicating Officer shall call upon the appellant to explain as to what the contents of those documents mean if not what he is alleged to have stated in his earlier statement. In the event the appellant refuses to explain the documents seized from him the Adjudicating Officer will be at liberty to from his own opinion on the conduct of the appellant and it can take into consideration appellant s earlier statements which are already on record. On the other hand, if the appellant avails of the opportunity and offer his explanation afresh the learned Adjudicating Officer shall consider both the explanations viz. those made under his earlier statements and those made afresh. On consideration of both the explanations the learned Adjudicating Officer shall record his findings as to which explanation is reliable and for what reasons. 14. It may be possible that the remaining evidence is not adequate to prove the charge beyond doubt but it discloses commission of a contravention other than the one with which he has been charged with. In that event the adjudicating authority shall frame a modified or fresh charge on the remaining evidence. However, before proceedings against Imran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-resident can be a ground to proceed against Shamim Ahmed; it would not necessarily follow that receipt of the said amount by Noor Alam was also on the instructions of or on behalf of a non-resident. Even if Shamim Ahmed were to state that Noor Alam received the payment on behalf of non-resident that statement would not have any evidentiary value. In the circumstances, the only evidence against Noor Alam is his own statement, though the admissibility of even that statement has been disputed on the ground that it is not voluntary. We also find force in the submission made by Shri Mahendra Singh that there is nothing inculpatory in the evidence of appellant s statement to sustain the charge. It is in this respect that the case in appeal No. 167 of 1997 differs from the case in appeal No. 178 of 1997. We have perused the statement dated 1-11-1995 of Noor Alam. Without expressing any opinion as to the admissibility of that statement we find that the admissions made therein are not adequate to sustain the charges against the appellant as alleged. Noor Alam denies any personal acquittance with Shah Alam. He admits that Shah Alam used to telephone at his residence from Dubai and he (Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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