9911796707
TMI Blog1998 (1) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant have been ordered to be confiscated. 2. I decided to waive pre-deposit of the amount of penalty on the plea of a prime facie case after considering the evidence of the appellant's employment abroad during the relevant time. This order disposes of the appeal on merits. 3. The appellant has not disputed that the foreign currency was recovered from his possession. He had sought to discharge the burden of proof under section 71(3) of the Act by taking the stand that he was at the relevant time a person resident outside India and the foreign currency was lawfully brought by him from abroad. It is seen from the impugned order that the learned Adjudicating Officer has arrived at the finding that the appellant is a person resident in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the provisions of section 2(p)(i)(a), he cannot be considered a person resident in India as he was gainfully employed abroad. He submitted that he was employed in Ajman Ula in the company Al Aghsan General Trading at a salary of 15,000 Dhiram per month with free furnished accommodation, conveyance and telephone. He was also giving tuitions to the students in UAE and thereby earning about 1,000 Dhiram per month. In his written arguments he has stated the procedure for obtaining resident visa in UAE. It is claimed that he applied for visit visa and got the same on 15-4-1993; that he got the confirmation of his employment from sponsor employer on 26-4-1993; that he applied for the resident visa and identity card and the Director of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Officer wrongly relied on the statements of the travel agents in regard to legal status of the appellant as those travel agents could not be considered to know the legal status of the appellant and were not competent to certify his status. 8. Dr. Shamsuddin appearing for the respondents submitted that the fact that air tickets for most of the foreign travels were purchased by the appellant in India in Indian currency and his unusually frequent travels in India and abroad were strong indications that he continued to be a resident of India. However, Dr. Shamsuddin conceded that if the documentary evidence in regard to the appellant's employments abroad is true, the appellant cannot be considered to be the person resident in Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r enquiry whether he falls in either or both of the remaining two categories of (b) and (c) is redundant and unjustified. Since the appellant has produced adequate documentary evidence of his employment abroad, most of which relates to orders or directions of the foreign Governments, I have no hesitation in holding that the appellant was a person resident outside India at the relevant time. 10. This leads us to the consideration of the question whether the appellant was in lawful possession of the foreign currencies seized from him. The appellant referred to the Notification No. FERA 81/89/RBI, dated 9-8-1989 as amended up to 12-7-1993 to show that any person coming to India is entitled to bring foreign currency up to the value of US $10,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that it would be for the department to prove, by appropriate evidence, that the appellant purchased the seized foreign currency in black market as alleged in the show-cause notice. The question, therefore, arises whether the learned Adjudicating Officer has found any evidence to sustain the allegation that the appellant had purchased the seized foreign currency in black market. I have gone through the impugned order. I do not find that the learned Adjudicating Officer has considered any evidence to sustain the allegation of purchase of seized foreign currency by the appellant. What he considered, apparently as evidence, is that immediately after completion of search on 25-4-1995 the appellant told the search party and the Investigating O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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