9911796707
TMI Blog1995 (10) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... Act'). The appellant has not deposited the amount of penalty. Instead, she has filed a dispensation application along with the appeal. She has also sent an application dated 2-8-1995 praying that the appeal be disposed of without her personally appearing as she cannot afford the expenses of journey. 2. After considering the financial position as brought out in the dispensation application and in view of the prayer made in her application dated 2-8-1995, 1 waive the requirement of pre-deposit and proceed to dispose of the appeal on merits by this final order. 3. Shri Gadoo appeared on behalf of the department and filed a Paper Book containing the copies of the Show Cause Notice (SCN) issued to the appellant, the reply thereto dated 17- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply, which she did on 17-4-1995. Therefore, it is not a case where the Adjudicating Officer had to await the reply to the SCN for a considerable time after the expiry of the due date so as to justify initiation of oral hearings without awaiting the reply. 6. As observed above, the oral proceedings were initiated in derogation of the requirement of rule 3(3) of the AP & A Rules, 1974. The logical course would be to remand the case for consideration of the Adjudicating Officer at the stage of reply to the SCN. However, since the appellant had appeared and presented her defence in the adjudication proceedings and the learned Adjudicating Officer has considered all the points raised in reply to the SCN, it will not be justifiable, in my opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have appreciated that the presence or absence of Mohinder Singh during investigation of the case was an important aspect. of investigation inasmuch as his statement would have been an important piece of evidence, not only in respect of the charge made against the appellant but also, if that charge were substantiated, for proceeding against him for contravention of section 9(3). He should have also appreciated that the appellant in her statement under section 40 had stated that her husband had told her that he himself was coming but he had not come so far. In the memorandum of appeal the appellant had stated that the portion after the particulars of the deposit of her husband was dictated by the Enforcement Officer of his own. In the reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nybody's name and that of donation to Gurdwara, the statement cannot be said to be corroborated insofar as it relates to the accounting of money alleged to have been received by the appellant. There is also discrepancy in the figure of the amount allegedly received by the applicant. The figure mentioned in the statement is Rs. 3,54,000 whereas that mentioned in the , fax message is 259 which is taken as Rs. 2,59,000. The lapse on the part of the investigating agency to investigate on the presence of Mohinder Singh in India prevented an important piece of evidence coming on record. This evidence would have lent corroboration of the true facts one way or the other. However, it is of significance that the appellant did not produce him to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he instructions of Malpinder Singh of Dubai through whom Mohinder Singh, the appellant's husband, allegedly arranged to deliver the amount to the appellant. The point made by the appellant that the fax message was from Malpinder Singh and not from her husband is of no consequence and the findings of contravention cannot be vitiated on that account. It is also to be noted that the appellant, though sought to cross-examine Tarsem Singh, did not ask for cross-examination of Paramjit Singh and Nirvail Singh although their statements were produced by the department in evidence to substantiate the allegations made in the SCN. 10. In view of the above, in my opinion, the finding of contravention of section 9(1)( b) can be sustained on the evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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