9911796707
TMI Blog1995 (12) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has been held guilty of contravention of section 9(1)(b) of the Act on the allegations contained in the SCN dated 11-8-1988. Shri Mahendra Singh, the learned counsel for the appellants, stated that the first and the second appellants have already paid a sum of Rs. 15,000 and Rs. 10,000, respectively, as part deposit of the amount of penalty. He pleaded for dispensing with the requirement of pre-deposit on the ground that both the appellants have faithfully disclosed all the factual details about the transactions investigated by the Enforcement Directorate and the charges of contravention as alleged in the SCNs cannot be made out. He submitted that the learned Adjudicating Authority misconstrued the facts and the provisions of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st appellant of having received payments in contravention of section 9(1)(b) , is in respect of the aggregate amount of Rs. 1,50,000 which shows that all other amounts received by him out of which he made payments to the second appellant, were received out of the funds provided by conversion of foreign currency into Indian currency. If that be the case, the allegation of making payments in contravention of section 9(1)(d) would arise only in respect of a sum of Rs. 1,50,000 (and not Rs. 3,82,000) as alleged in SCN II since the remaining payment will be covered by the general permission given by the RBI under Notification No. FERA-6/74-RB, dated 1-1-1974 issued under section 9(1)(d) . 5. Shri Mahendra Singh has brought out in his written sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preciated that the fact whether there has been a corresponding remittance from abroad is a matter which may always not be in the knowledge of the person receiving the payment. Nor is there any provision in the Act requiring the person giving money to supply evidence of corresponding remittance while giving the money to the person who receives it. The same reasoning applies to the other requirement of the provision, namely, that the payment is received by order or on behalf of a person being resident outside India. The status of the person that he is resident outside India is also not necessarily in the knowledge of the person receiving the amount in all cases. Many a time it is not easy to determine that status. Of course, in these appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that. Therefore, there was no occasion for the appellant to even suspect that there might not have been a corresponding remittance. The conduct of the appellant also constitutes circumstantial evidence to show that he could have reasonably believed that the amount received by him is being provided to him in a legal manner without any contravention of law. This is clear from the manner in which he meticulously maintained not merely his personal account but all remittances and payments thereof are reflected in the bank's accounts also. The facts that the money received by him was intended to be paid to the contractor who was renovating Abdul Samad's house under the appellant's supervision and the appellant was only handling the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement under para 4 of the impugned order that the appellant had received a total payment of Rs. 5 lakhs from Abdul Samad for making the payment to Ram Prasad for renovation of his house. It is seen from p. 3 of the impugned order that an amount of Rs. 50,000 was transferred from NRE account of Abdul Samad on 7-10-1986. Out of these amounts aggregating to Rs. 5,50,000, the department, alleged in SCN I that the appellant had received a total amount of Rs. 1,50,000 only in contravention of section 9(1)(b) . Even if the allegation made in SCN I is taken as true for the sake of arguments, it would follow that the remaining amount of Rs. 4 lakhs had been received not in contravention of section 9(1)(b). Since all the amounts were received by or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion work on commercial basis. All the amounts received by him were in consideration of the work done by him. They have been duly rejected in his books of account and in the income-tax returns, which shows that the amounts received by him were part of his business earnings. In the circumstances, it cannot be said that he received the said amounts 'by order or on behalf of Abdul Samad. On the other hand, the correct position is that he received the amount for himself and for the work done by him and not by order or on behalf of Abdul Samad. In view thereof, the charge of contravention of section 9(1)(b) on the part of the second appellant cannot be made out on the face of it as section 9(1)(b) cannot be attracted in the facts and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X
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