9911796707
TMI Blog1996 (7) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... -11-1990. In his application seeking dispensation from pre-deposit of the amount of penalty the appellant has stated that he deals in sale and purchase of buffalo and does agriculture on rental basis and his annual income therefrom is about Rs. 20,000, that he is not assessed by the income-tax or wealth-tax, that he has no movable or immovable property in India and that his cash in hand is about Rs. 6,500 and the balance in Kapurthala Central Bank was Rs. 104 at the close of business on 7-4-1992. Shri Vikas Duggal, the learned counsel for the appellant started that the appellant's financial position has gone down after he was booked under FERA and he has no means to deposit even a part of the penalty amount. Shri Gadoo, appearing for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought corroboration from the statements of Shri Ranjit Singh, Shri Rajinder Kumar and Shri Pramod Ohri as also the appellant's own statement, all recorded under section 40 of the Act. All these persons, including the appellant, retracted their said statements. These statements were relied on in the show-cause notice issued to the appellant. The appellant contended that all the three persons being co-accused, their statements cannot be given any weightage. He also sought cross-examination of these persons, which was denied on the ground that all the three persons already retracted their statements and, therefore, cross-examination would have been an exercise in futility. It appears that the appellant also sought cross-examination of cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and took the Investigating Officer to the persons to whom he has distributed various amounts in violation of section 9(1)(d) and those persons also confirmed having received those amounts from the appellants. Even if the statement of the recipient of the amount is excluded, the fact remains that the appellant till date has not given any other explanation in respect of the seized documents than that purported to had been given to the department in his statement under section 40. Therefore, the mere retraction of the whole statement cannot have the effect of obliterating the evidence of section 40-statement in its entirety. In our opinion, for substantiating the charge of contravention of section 9(1)( d), the learned Adjudicating Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his statement under section 40, he had admitted that various amounts sent by Nirmal Singh of U.K. had been delivered to him from time to time for onward distribution. It is immaterial as to who delivered those amounts insofar as the charge of contravention of section 9(1)(b ) on the part of the appellant is concerned. What is material is that the amount delivered to him was not remitted by Nirmal Singh through proper banking channel and he received those amounts in violation of section 9(1)(b). In the adjudication process under section 51, it is not necessary that the evidence on record be such as to substantiate each element of the charge with mathematical precision. In our opinion once the circumstances or other evidence are found to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01 was to make payment of Rs. 44,000 to Smt. Banso. This all the amount of Rs. 48,0001 received on the instructions of Shri Nirmal Singh. Since the statement was retracted, it was, in our opinion, the duty of the Adjudicating Officer to consider whether this part of the statement could be believed to be voluntary and true. The Investigating Officer did not enquire anything from the appellant about the said Smt. Banso. He did not enquire as to how he received the said amount of Rs. 48,000 - whether it was delivered to him at his village, like the amount received by him on other occasions, or, whether it was collected by him at the studio of Singh's brother. It is seen from his statement that he had been maintaining bank accounts of himse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) on the part of the appellant. However, the order of confiscation is liable to be set aside. 8. As regards the quantum of penalty, Shri Duggal submitted that the appellant is a poor tenant and sharing the agricultural produce with the owner of land. The income from sale of buffalo is not regular and not adequate to save much money. He pleaded, therefore, that the quantum of penalty is too excessive to enable him to pay the amount. He also stated that the sum of Rs. 48,000 has already been seized by the department and that it is clear from the facts as relied on by the Adjudicating Officer that the appellant is merely a carrier and, therefore, the quantum of amounts allegedly distributed by him in violation of the Act has nothing to do wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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