9911796707
TMI Blog1992 (7) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... instant case, two show-cause notices (Memo No. T4/337/SZ/ City/84-SCN-I and Memo No. T4/338/SZ/City/84-SCN-II) were issued to the appellant charging him as follows: (i) SCN-I - The charge levelled against the appellant in this notice is that during June 1984, the appellant Sh. S. Raman, a person resident in India other than an authorised dealer in foreign exchange, otherwise acquired foreign exchange to wit US $ 3.768 from his brother in Saudi Arabia as gift but failed to surrender the same within 7 days from his return to India and thereby contravened provisions of section 8(1) read with RBI Notification No. FERA 47/77-RB, dated 24-11-1977. (ii) SCN-II - The charge levelled against the appellant in this notice is that during June 1984, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon in one notice only (SCN-II). It was also contended on behalf of the appellant that mere receipt of money from his brother as gift would not amount to contravention of section 8(1). Alternatively, the counsel for the appellant pleaded for a lenient view as the appellant had already been prosecuted for non payment of the penalty as also because the appellant is economically very weak apart from being mentally and physically handicapped. 6. The counsel for the respondent, on the other hand, submits that the confessional statement was voluntary, that the retraction was after thought and that the appellant did not make any request for cross- examination of the witnesses during the course of the adjudication proceedings. 7. SCN-I - A perus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall in India, and no person resident in India other than an authorised dealer shall outside India, purchase or otherwise acquire or borrow from, or sell, or otherwise transfer or lend to or exchange with, any person not being an authorised dealer, any foreign exchange : Provided that nothing in this sub-section shall apply to any purchase or sale of foreign currency effected in India between any person and a money changer. 9. While considering the scope of the expression 'otherwise acquire' occurring in the above provision, the Bombay High Court in Pandharinath Kishthiah Renguntawar v. Dy. Director of Enforcement [1981] 51 Comp. Cas. 163, 173 (Bom.) has held as follows: ... It does not stand to reason that a gift of foreign exchang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be stated that SCN-I mentions 7 days instead of 3 months. The period of 7 days is relevant under the third proviso of that notification, which is not attracted when an Indian resident acquires foreign exchange outside India by way of gift, as such, a case would fall under the said first proviso under which the period stipulated is 3 months. As the said amount was not surrendered even after 7 days, this anamoly is not such as may vitiate the proceedings. Nor can it be said to have occasioned failure of justice. This is only a minor discrepancy, particularly when the said notification was mentioned in the SCN along with the substantive provisions contained in section 8(1) as also when the explanations contained in the appellant's afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of the Act contained in SCN-II, it may be stated that the appellant has stated in his statement dated 23-6-1984 given before the E.O. that before departure to Singapore, he purchased US $ 4,000 from an unknown person in Burma Market (Madras) and took the same to Singapore. The confessional statement given by the appellant on 19-6-1984 before the Customs Officers also corroborates the appellant's statement dated 23-6-1984. Further, the fact that the appellant had brought 3 gold biscuits and number of other goods from Singapore, as mentioned in the seizure memo also lends support to the above confessional statement of the appellant. Therefore, the retraction appears to be afterthought. There is no reason as to why the confessional stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is difficult to say that the said purchase was made at rates other than the rates authorised by the RBI. The condition (ii) above is not satisfied. Accordingly, the charge of violation of section 8(2) is not established against the appellant. 15. A perusal of the adjudication order reveals that the appellant was given opportunity of personal hearing and the appellant's advocate appeared before the Adjudicating Officer and argued the case. The adjudication order does not reveal that cross-examination of the witnesses was demanded by the appellant during the course of hearing before the Adjudicating Officer. Therefore, the plea that the appellant was not afforded opportunity to cross-examine witnesses does not have any substance. 16. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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