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TMI Blog1995 (12) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... ) No. T-4/232/DZ/94 dated 29-7-1994. It is alleged in the SCN that one R.C. Natarajan, an Indian resident in U.S.S.R., made payments of Rs. 2 lakhs through D.D. No. 255075 dated 24-10-1991 issued by New Bank of India, Defence Colony, Delhi, in favour of Kapil Mehta, the minor son of the appellant, from out of the funds in the NRE account of R.C. Nataraj an. It is further alleged that in lieu of the said payment of Rs. 2 lakhs by R.C. Nataraj an the appellant made payment of Rs. 2,24,000 to or for the credit of R.C. Natarajan, a non-resident Indian, thereby contravening the provisions of section 9(1)(a). It is also alleged that one Sumeer Mahajan opened several NRE accounts in India including some accounts in the name of his employees, one o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied on by the department, nowhere specifically mentions the names of these appellants and the amounts alleged to be paid by them to Sumeer Mahajan in contravention of section 9(1)(a). On the other hand, the payments made by Sumeer Mahajan to these appellants were by way of gift from NRE accounts and were duly made through banking channels. It is, therefore, submitted that the facts as alleged are not borne out by the evidence on record and that the charge of contravention as alleged cannot be made out on the basis of evidence relied on in the SCN. It is also submitted that the impugned orders have been passed in denial of the due opportunity to the appellants to defend themselves inasmuch as they were denied the cross-examination of Sumee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese cases may not be kept pending merely for awaiting the judgment of the Delhi High Court. I have considered these appeals on the said premises. 7. After considering the records and the oral submissions made by the counsel, I am of the opinion that these cases will have to he adjudicated upon afresh. I have perused the records of the adjudication proceedings. It is not disputed that the department has the evidence of banking transactions and the gift deeds, etc., on the record. They have recorded the statement of Sumeer Mahajan under section 40 which had subsequently been retracted. This statement has been relied on against the appellants without affording any opportunity to them to cross-examine Sumeer Mahajan. It is seen from the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to accept the theory of gift or the doner and the donee are not in a position to come forward with any acceptable explanation for making the gift or receiving the amount and accounting for it. This may itself be one of the relevant circumstances. Sh. Rahul Gupta made a plea that the Department cannot be allowed to improve upon its case by collecting fresh evidence. There is a merit in the plea but this would not prevent the Department from relying on whatever evidence has already been collected. 9. In view of the above, I am of the opinion that there is a prima facie case in favour of the appellants and they deserve dispensation from the requirement of pre-deposit. Hence, these cases need to be re-adjudicated to dispose of the appeals by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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