9911796707
TMI Blog1988 (5) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of Rs. 1 lakh by means of a cheque from a local person in February 1985 on the instruction of his son, Paul Davis of USA the said amount was credited in his bank account No. 213 with the South Indian Bank Ltd., Quilon in February 1983 and out of the said sum he purchased a car for a sum of Rs. 75,571, utilising the balance amount of Rs. 24,429 in the construction of a garage for his car. As regards the seizure of US dollars 334, he explained that the amount was given to him by his son, Paul Davis when he had gone to visit his son and that he did not surrender the same for conversion into Indian currency under a wrong belief that he could keep foreign exchange up to dollars 500 with him. That apart, he also explained seized letter dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant admitted the Statement earlier given by him before the Enforcement Officer. He, however, explained that he had requested his son, Paul Davis residing in USA to advance Rs. 1 lakh to him for purchase of a car because he needed the same after having suffered a heart attack and that the amount in question was paid to him by a local person on the instruction of his son because the latter at that time had no ready money to spare. He also pleaded his innocence in regard to the alleged contravention of the aforesaid provision of law by explaining the facts and requested for a lenient view to be taken on the ground that he was not fully aware of the aforesaid provisions of law. On the basis of the said reply and after giving a personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject-matter of any conscious or intentional contravention of the legal provision in question. The departmental representative on the other hand supported the adjudication order and pleaded that only a nominal penalty of Rs. 5,000 was imposed on the appellant for contravention of the provisions of section 9(1)(b) because the car purchased out of the amount involved in the contravention has also been confiscated. He further contended that very nominal penalty of Rs. 500 each was imposed in respect of charge under show-cause Notice Nos. 1 and 3 above keeping in view the facts of this case and the same cannot be said to be excessive or unmerited. 5. I have carefully considered the contentions raised on behalf of the parties and the material av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en spent only for the purchase of the car and building a garage for the same fact which would believe any possible suggestion of intentional contravention of law relating to foreign exchange. In reply to the contention raised by the Respondent that much heavier amount of penalty would have been imposed if it was not considered desirable to confiscate the car purchased out of the amount received by the appellant, the appellant immediately offered to pay any higher amount of penalty as the Board may like to impose, in lieu of confiscation. He also filed an affidavit duly sworn by the appellant that he is prepared to pay any amount of penalty not exceeding Rs. 25,000 which the Board may impose in its discretion in lieu of the confiscation. So, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be confiscated. It is, thus, clear that confiscation can be ordered if taking into consideration the facts of this case it is considered necessary to confiscate the property and such confiscation is not automatic. The phrase as it thinks fit indicates that confiscation can be ordered only in suitable cases and there should be a conscious application of mind to justify such confiscation. Further, the use of phrase 'may' under section 63 clearly indicates that confiscation is not a matter of course. In this connection reference may be invited to the observations made by Lord Cairns in Julius v. Bishop of Oxford 5 AC 214 as under : There may be something in the nature of the thing empowered to be done, something in the object for whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xed at Rs. 25,000. In lieu of the confiscation of the car. The car shall be released from confiscation and restored to the appellant on his paying this amount of course in addition to other amounts imposed under the adjudication order in the office of the Deputy Director of Enforcement, Madras. The order of the Adjudicating Officer is accordingly modified to the extent that the car shall be released from confiscation on payment of Rs. 25,000 in addition to other penalties imposed on the appellant. In all other respects, the finding of the Adjudicating Officer is maintained except to the extent that the confiscated car shall be released from confiscation on payment of Rs. 25,000 as the amount of penalty in lieu thereof in addition to other p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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