9911796707
TMI Blog1995 (12) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... n of foreign exchange recovered from the appellant. A further penalty of Rs. 70,000 has been imposed on the appellant for contravention of section 8(1) and (2) on the allegation that he purchased and sold foreign currencies equivalent to Rs. 4,70,731 at unauthorised rates in violation of section 8(1) and 8(2). 2. The appellant has filed a petition for dispensing with the requirement of pre-deposit. The petition is supported by affidavit and copies of the returns of income-tax and bank pass books, etc. Having regard to the financial position brought in the petition, I dispense with the requirement of pre-deposit and proceed to dispose of the appeal by this final order. 3. The appellant has assailed the impugned order on several grounds some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en. He has contended that the travellers cheques, etc., were not endorsed in his name and therefore he was not in a position to encash the same and for that reason he cannot be said to have 'acquired' the foreign exchange. In my opinion, this contention has no force in view of the definion of foreign exchange. Endorsement on the instrument would not be a pre-condition for its acquisition and in my opinion mere possession of foreign exchange would amount to such acquisition unless it is proved that the possession of such foreign exchange was in the nature of mere custody. The fact that the travellers cheques were signed at two places so as to enable its encashment and further that the appellant has not been able to bring forth any pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge Regulation Act or under any other law. In view thereof the provisions of section 72(i) can be applied to the chits of the accounts of foreign exchange which were recovered from the appellant and seized by the customs authorities, for the purpose of adjudication proceedings under the Foreign Exchange Regulation Act, 1973. 6. In my opinion, Shri Kapadia's contention that the finding of the charge under SCN V is based on the sole evidence of the appellant's retracted statement, also has no force. It is not correct to say that there is no evidence on the incriminating transaction of foreign exchange by the appellant. It is for the appellant to explain as to how these chits have come to be in his shop. Moreover, some of the chits have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant in the contravention of the provisions of the Act as upheld above. Shri Kapadia submitted that since the penalty has been imposed for both the charges, it is only logical that the penalty is proportionately reduced if any of the charges are set aside, particularly when the department has not filed any appeal for enhancing the penalty. I find some substance in the submission made by Shri Kapadia. I, therefore, reduce the quantum of penalty for contravention of the charges contained in SCN V from Rs. 70,000 to Rs. 50,000. 9. In the result, the appeal is partly allowed. The finding of contravention of section 8(1) as charged under SCN IV and the penalty imposed therefor as also the confiscation of the foreign exchange is uphel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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