9911796707
TMI Blog2024 (11) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... HELD THAT:- In the instant case, the appellant Directorate have failed to show that there was receipt of payment from any person resident outside India and that Tiger Memon was resident out of India or for that any other person with whom alleged Hawala Transaction took place. In the light of the aforesaid, the appellant Directorate have failed to satisfy the ingredients of Section 9(1)(b)(d) to pass the order against the Respondent No.1. Further issue is in reference to the order of the Apex Court under TADA where Respondent No.1 has been extended benefit. It is mainly on the ground that his statements were recorded under coercion and with duress thus cannot be relied. The appellant Directorate have relied on the same statement despite bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Kumar, Advocate For the Respondents: Shri Johnson K.George, Advocate FINAL ORDER FPA-FE-41/MUM/2022 The appeal has been preferred by the Assistant Director, Directorate of Enforcement under Section 19 of the Foreign Exchange Management Act, 1999 (for short `FEMA, 1999) against the order dated 28.03.2019 passed by the Adjudicating Authority. 2. The appeal against the order dated 28.03.2019 has been filed with a delay of 838 days and, therefore, an application for condonation of delay has also been filed. The counsel for the appellant Directorate prayed for condonation of delay so that the appeal may be decided on merit. An alternative submission was made to consider the appeal on merit along with application for condonation of delay. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of two chits containing accounts of various money receipts. It was a case of Hawala , smuggling of gold and silver where Tiger Memon used to deposit money with Respondent No.1 and thereby apart from the case under TADA, the notice was served even for the violation of Section 9(1)(b) and (d) of the Foreign Exchange Regulation Act, 1973 (in short `the Act of 1973). The personal hearing was given to the Respondent No.1 and thereupon a penalty of Rs. 35 lakhs was imposed upon him. The Respondent No.1 filed appeal before the Appellate Tribunal where the impugned order was set aside on 13.11.2018 with remand of the case for re-adjudication by the Adjudicating Authority. The Adjudicating Authority, on fresh adjudication, dropped the charges agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the relevant period. The passport produced in the case registered against him under TADA was sufficient to prove the aforesaid but ignoring the fact that Tiger Memon is not resident out of India, the contravention of Section 9(1)(b)(d) was alleged. There was no transaction in favour of the person resident outside India. Accordingly, a case for contravention of Section 9 of the Act of 1973 was not even made out. Ignoring the aforesaid, penalty of Rs.35 lakhs was imposed. It is more so when the Apex Court dropped the case against the Respondent No.1 under TADA. The order was passed finding his statement under coercion and duress by causing torture. The material placed under TADA has been relied herein and now in the light of the order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Respondent No.1 was discarded, it could not have been relied for passing the order for imposition of the penalty. The Adjudicating Authority decided the case mainly in reference to the order of the Apex Court. We are otherwise analysing the case not on merit. It is to find out whether contravention ofSection 9(1)(b)(d) of the Act of 1973 is made out. For ready reference, Section 9(1)(b)(d) is quoted hereunder for ready reference: 9. Restrictions on payment .-(1) Save as may be provided in, and in accordance with, any general or special exemption from the provisions of this sub- section which may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in, India shall- (a) x xx (b) receive, otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid, the appellant Directorate have failed to satisfy the ingredients of Section 9(1)(b)(d) to pass the order against the Respondent No.1. 12. The further issue is in reference to the order of the Apex Court under TADA where Respondent No.1 has been extended benefit. It is mainly on the ground that his statements were recorded under coercion and with duress thus cannot be relied. The appellant Directorate have relied on the same statement despite being discarded by the Apex Court. In the light of the aforesaid, the appellant Directorate was required to show other material to prove the case. It is also when other statements were also discarded and in any case if the pleadings of the appeal are taken into consideration, the appellant Dir ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
