9911796707
TMI Blog2000 (1) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... , dated 21-5-1979. In addition to the penalty the appellant has been directed to close the accounts maintained by him in foreign banks within one month and repatriate the entire balance in those accounts. The appellant has since complied with the direction. This appeal is, therefore, directed against the imposition of the penalty. The appellant has also deposited the amount of penalty. This order disposes of the appeal on merits. 2. The appellant has filed an application seeking condonation of delay. Dr. Shamsuddin objected to the application on the ground that since the appeal has been received in the Board after 91 days and the Board has no jurisdiction to condone the delay. Shri Mahendra Singh, the learned counsel for the appellant submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone and settled down in Malaysia at the age of 8 years. According to the department, the appellant had become a person resident in India in September, 1981 as admitted by him in his statement and that he continued to stay here since then. They have also relied on appellant s statement that his Malaysian passport expired on 13-5-1984 and he did not get it renewed as he had decided to reside in India permanently. The learned adjudicating officer did not find anything to controvert these facts and accordingly he found the appellant guilty of contravention of the notification referred to above where under a person is required to repatriate all the foreign exchange held outside India within three months on his becoming a person resident in Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laysian citizen and he was not permanently residing in India. 7. The argument put-forth by Shri Singh with all the force at his command are ingenious and the legal premises on which they are sought to be built upon are duly supported by Case law. However, I find it difficult to accept the plea advanced by Shri Singh for the reasons discussed hereinafter. 8. It is not disputed that the appellant was a Malaysian citizen of Indian origin when he came to India in September 1981. The appellant has not disputed that he continued to stay in India since then. His Malaysian passport also expired on 13-5-1984. The Enforcement Officer perused his passport and returned the same after verifying the correctness of the statement recorded by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on person resident in India to mean (iii) a person, not being a citizen of India, who has come to, or stays in, India, in either case (a) to (c)****** (d) for any other person, in such circumstances as would indicate his intention to stay in India for an uncertain period . The appellant was not a citizen of India when he came to India on 22-9-1981 but since then he has been staying in India. In 1984 his Malaysian passport expired but he still continued to stay in India ever since. 12. Assuming, as contended by Shri Singh, that he had to stay in India for medical reasons and since he continue to be ill he ultimately decided to permanently settle down in India. The question arises from what point of time he can be said to have entertained the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y facts or circumstances to show that he intended to go back to Malaysia to reside there. After he came to India in September 1981 he had never gone out of India. All these circumstances indicate without any doubt that at least from 13-5-1984 he has been staying in India with the requisite intention so as to acquire the status of a person resident in India in terms of section 2(p)(iii)(d). I have, therefore, no hesitation to hold that at the relevant time the appellant was a person resident in India and in view of the undisputed fact that he continued to hold the foreign exchange in foreign banks he has violated the provisions of section 14 of the Act read with Central Government s notification referred to earlier. 14. Shri Singh s second a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Explanation. In view of the Explanation the appellant shall have to be treated as a person permanently resident in India as he is admittedly a person of Indian origin even though he may claim to be a foreign citizen. 15. In view of the above, in my opinion, the finding that the appellant is guilty of contravention of section 14 read with notification referred to in the impugned order is unassailable and deserves to be maintained. 16. Shri Mahendra Singh also made his submissions in respect of the quantum of the penalty. He submitted that the appellant was not aware of the foreign exchange regulations in India as he was a foreign citizen and he had faithfully and truthfully given all information required of him by the department, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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