9911796707
TMI Blog1995 (12) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... d with section 68(1) in his capacity as a partner of the second appellant. A penalty of Rs. 5,000 has been imposed on the second appellant for contravention of section 16(1)(a). 2. Initially, the memorandum of appeal dated 14-10-1986 was filed by the first appellant without expressly mentioning therein that it was a joint appeal on his own behalf as well as on behalf of the second appellant but it is clear from the contents of the said Memorandum that the appeal was intended on behalf of both the appellants. But apparently on an objection taken in the course of the hearing on 16-12-1987 at Bombay, another memorandum of appeal had been filed on 21-12-1987 on behalf of the second appellant. In the second memorandum of appeal, a prayer had als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. I is for abetment of contravention of section 9(1)(a) on the part of N.S. Kohli. Therefore, unless the charge against N.S. Kohli is proved, the question of abetment of that contravention would not arise. It further appears that in spite of the efforts made the Department could not furnish the status of the case of N.S. Kohli. 4. Since this case is pending since 1986,1 went through the record and came to the prima facie view that this appeal could be disposed of without awaiting the final order in the case of N.S. Kohli. It is clear that the charge against the first appellant under SCN No. I is for abetment of contravention on the part of N.S. Kohli and the impugned order has been made holding him guilty of abetment without adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned and received by the appellant which has already been discussed in the impugned order. Being a matter of factual details he has nothing further to add. 8. I have gone through the impugned order and considered the submissions made on behalf of the appellant in the Memorandum of Appeal as well as the submissions made by Shri Srivastava. In my opinion, there is substance in the contentions made by the appellant that the findings of the appellant's alleged role in the transaction of remittance of US $ 20,000 by Thomas Cooks and transfer of the said amount by Ved Khanna to Max Wiseman, does not amount to abetment of the alleged contravention of section 9(1)(a) by Kohli on the part of the appellant. 9. The learned Adjudicating Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to receive any foreign exchange. Where the foreign exchange is alleged to have been earned by way of commission, it is necessary to take into account all the imports actually made on the indent of that person, the agreement of that person with his foreign principal abroad in respect of the rate of commission and the remittances received by that person in respect of each such indent. There is nothing on record to suggest that any such investigation was made by the investigating agency or that any such exercise was done by the learned adjudicating authority. The learned adjudicating authority has considered a few calculations and the appellant's clarifications made during his interrogation in respect of those calculations. Subsequent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 5-5-1980. It would appear from the impugned order that these additional remittances have not been taken into consideration by the learned Adjudicating Officer. The findings noted above are, therefore, not based on correct appreciation of factual details of the remittances received by the appellant by way of commission. The appellant has been asserting that he has received the entire amount of commission earned by him and there is nothing further to be repatriated in view of the certificates of further remittances subsequent to the 26 remittances up to April 1980. Moreover, as observed earlier, in absence of the evidence of any enforceable agreement between the appellants and their principals abroad about the rate of commission and of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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