9911796707
TMI Blog1999 (9) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial permission of the RBI. 2. The appellant has already deposited the amount of penalty. This order disposes of the appeal on merit. 3. The adjudication proceedings were preceded by a search at the business premises of Gulati Associates, a proprietary concern of the appellant. During the search, an amount of US $2,000 was recovered from the personal search of the appellant and the same was seized. The department also recovered and seized some documents believed to be of incriminating nature. The appellant was interrogated under section 40 of the Act. In the course of interrogation in respect of the seized US $2,000, the appellant stated that neither he nor any member of his family, has any foreign currency other than the seized amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the travel purposes. 5. Shri J.S. Arora, the learned counsel for the appellant, advanced the argument that in the facts and circumstances as relied on in the impugned order, it cannot be said that the appellant had acquired the seized foreign exchange within the meaning of section 8(1). He submitted that the department itself has relied on the statement of the appellant in support of the charge and in his statement, the appellant clearly stated that the amount had been left by his son for travel expenses of his wife and daughter. That statement has not been disbelieved by the learned Adjudicating Officer. In the circumstances, Shri Arora submitted that at the time of search, the appellant was merely keeping the amount as trustee for his wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted by the air tickets for the journey of his wife and daughter which shows that his wife was actually to leave for USA on 27-3-1994, i.e., after 3 days of the search and seizure. 6. Shri Arora also impugned the order of confiscation by making the submission that since there is no evidence that the seized amount of US $2,000 was illicitly acquired, there is no justification for confiscation of the seized amount. He submitted that RBI had given permission to the appellant s son for remitting foreign exchange up to Rs. 51 lakhs for the purchase of shares out of which foreign exchange equivalent to Rs. 41 lakhs have already been remitted through proper banking channel with due permission. This shows, according to Shri Arora, that the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eized documents were not found to be of incriminating nature at least insofar as the present charge is concerned. 9. It is also quite apparent from a perusal of the appellant s letter of 25-3-1994 as compared to his statement under section 40 that the explanation given by the appellant in respect of the seized amount was only to meet the suggestion made by the Investigating Officer in the course of the appellant s interrogation, namely, that possession of so much of foreign exchange is violation of law. However, since that letter had not been relied on in the SCN, it was not proper for the learned Adjudicating Officer to take note of that letter. Since the evidence of that letter has been rejected, the result is that the findings of contrav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve plea; and he did not concede the alleged contravention on the part of the appellant. In any case, the position is judicially settled that under the Act, a person cannot be held guilty on the plea of guilt. In the case of State of Maharashtra v. Mahesh 1985 WLJ 453, the Bombay High Court observed as under : As regards the plea of guilt, the Appellate Board held and, rightly so, that in the first instance, there is no provision under the Act as such to base the order exclusively on such a plea and secondly, on the broader premise, if ex facie taking all the evidence as it stands, no contravention is made out, then notwithstanding such a plea the person concerned facing the charge can well be exonerated. This position is not seriously contr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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