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TMI Blog2013 (12) TMI 1758X X X X Extracts X X X X X X X X Extracts X X X X ..... e mentioned fact was brought to the notice of the present regular Bench for the first time, then the appellant through his counsel, the respondent through ALA & the registry of this Tribunal were directed to explain why delay occurred and compliance not made, regarding the disposal of the present Appeal No.475/2003, on the basis of the judgment of the Hon'ble Calcutta High Court. 2. It is also relevant to mention that this case was put up for hearing for the first time by the registry before the present Single Member Bench of Acting Chairperson on 24.07.2013 as both the regular members joined the Bench in the month of July, 2013. The interim order of the Tribunal, dated 24.7.2013 runs as under.-- "Single Bench Dated : 24.7.2013 Appeal No.(s) : 475/2003 Appellant (s) : Shri Ratan Jasarasaria Ms. Smriti Pradhan, Legal Consultant appeared on behalf of Enforcement Directorate and she wants to seek advice in the matter from the Deptt. and also requested for further adjournment in the matter. On the other hand, a proxy counsel (Sh. S. K. Chauhan) appeared for the appellant on behalf of Sh. S.K. Mehta, Advocate. Request allowed and the matter is, therefore, adjourned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of hearing as it was a time bound case. This is the last opportunity for the aforesaid purpose. Now, the case is adjourned to 08.10.2013 for the purpose of submitting their reports as well as arguments in the present Appeal in the interest of justice as reasonable opportunity is being given to both the parties for hearing, on the basis of maxim "audi alteram partem", which means that both the parties be heard before a decision is arrived at. Registry is directed to make immediate compliance of the order of the Tribunal. Parties be informed accordingly. Copy of this order be also sent to Hon'ble Calcutta High Court through Registrar for information. The next interim order of the Tribunal, dated 08.10. 2013 runs as under-- Dated : 08.10.2013 Appeal No.(s) : 475/2003 Appellant (s) : Shri Ratan Jasarasaria Shri G.N. Ghosh, ALA along with Ms. Smriti Pradhan, Legal Consultant appeared on behalf of the Enforcement Directorate while a proxy Counsel (Sh. S.K. Chauhan) appeared on behalf of Sh. S.K. Mehta, Advocate for the appellant. It is also pertinent to mention that this is a remanded matter from the Hon'ble Calcutta High Court, Vide GA No.4129 of 2008, FEA No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4129 of 2008, FEA No.28 of 2008, decided on 28.01.2010, titled as Shri Ralan Jasarasaria v. Deputy Director, Enforcement Directorate & Anr., wherein the Hon'ble Calcutta High Court had set aside the order of the Tribunal, dated 8.8.2008 pertaining to Appeal No.475 of 2003 and the entire matter was remanded for fresh hearing. The Tribunal was further directed to decide the matter within a period of two months from the date of communication of this order. It is also pertinent to mention that on 19.9.2013, when the above mentioned fact was brought to the notice of the present regular Bench for the first time, the appellant through his counsel, the respondent through ALA as well as the registry of this Tribunal were directed to explain why delay occurred and compliance not made, regarding the disposal of the present Appeal No.475/2003, on the basis of the judgment of the Hon'ble Calcutta High Court. On the earlier date i.e. on 08.10.2013, the Registry through Registrar submitted its office report. Today, Ld. Counsel for the appellant also places on record the explanation report, which was directed by this Tribunal on the earlier date. Ld. Counsel for the appellant further submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Enforcement Directorate, Foreign Exchange Management & Anr., wherein the Hon'ble Calcutta High Court had set aside the order of the Tribunal, dated 8.8.2008 pertaining to Appeal No.475 of 2003 and the entire matter was remanded for fresh hearing. The Tribunal was further directed to decide the matter within a period of two months from the date of communication of this order. It is also pertinent to mention that on 19.9.2013, when the above mentioned fact was brought to the notice of the present regular Bench for the first time, the appellant through his counsel, the respondent through ALA as well as the registry of this Tribunal were directed to explain why delay occurred and compliance not made, regarding the disposal of the present Appeal No.475/2003, on the basis of the judgment of the Hon'ble Calcutta High Court. The Registry through Registrar, the Respondent through ALA and the Appellant through their Counsels have placed on record their explanation report, which read as under:-- Registry through Ld. Registrar.-- It is submitted by the Registry vide its report dated 7.10.2013 that the Enforcement Directorate vide their letter No.T-8/462/Legal/2003 dated 28.7.2010 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed for 11.5.2011. On 11.5.2011, the Bench was not available and the matter was adjourned to 2.11.2011. On 2.11.2011, the appeal was heard by the Ld. Member. The appellant made and completed his submission and the same was adjourned to 23.1.2012. On 23.1.2012, the Bench did not sit and the matter was posted for 6.3.2012. On 6.3.2012, the Bench did not sit and the matter was further posted for 19.4.2012. On 19.4.2012, the Bench did not sit and the matter was further adjourned to 18.7.2012. On 18.7.2012, a penalty of Rs. 500/- was imposed as cost on the appellant and the matter was adjourned to 9.10.2012. The matter was/further adjourned to 12.12.2012, 20.3.2013 & 16.4.2013. On 16.4.2013, the appellant through his counsel appeared and made submission. The matter was adjourned to 11.6.2013 for filing written submission and proof of deposit of cost of Rs. 500/-. The written submission was filed on 8.6.2013. The matter was further posted for hearing on 24.7.2013, 19.9.2013, 8.10.2013 & 30.10.2013. In the above referred appeal, the appellant concluded and made his submissions in appeal thrice. Lately, the appellant preferred to file his written submission in the facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns already placed on record alongwith arguments of the Ld. Counsel. Arguments have already been concluded on behalf of both the parties. Hence, the matter is reserved for orders. 6. Copy of this order be sent to the Hon'ble High Court of Calcutta through Registrar for information. Sd/- (Dr. H.K. Mudgil) Acting Chairperson 3. The appellant Shri Ratan Jasarasaria, by means of the present Appeal (No.475/2003, challenged the Adjudicating Order No.29/2003/DD(ADJ) dated 29.08.2003, passed by Deputy Director, Enforcement Directorate, Calcutta. The Tribunal vide its common order, dated 08.08.2008 pertaining to other appeal Nos. 462/2003, 463/2003, 486/2003 & 519/2003 along with the appeal of the present appellant, i.e Appeal No.475/2003 observed as under:-- (relevant paras-15-16) "15. In the light of the above factual and settled legal position, we do not find any reason to interfere in the quantum of penalty imposed on the individual appellants. 16. For the reasons stated above, these appeals are liable to be dismissed for having no merit. Accordingly, an order is passed. The amounts pre deposited are to be appropriated towards realization of the respective penalty amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Indeed it is not a judgment in legal sense for scrutiny of this Court. Let the judgment be delivered afresh with reasons applying appropriate principle of law on the given facts and circumstances. Then and only then this Court will be able to scrutinize the same. This court cannot usurp the task of the tribunals. Hence, the judgment is set aside and the entire matter is remanded for fresh hearing in terms of the observations made in this order. We request the Learned Tribunal to decide the matter within a period of two months from the date of communication of this order. We record that we have not observed anything on the merit of this case.' 5. On the basis of judgment of the Hon'ble Calcutta High Court (titled supra), the present Appeal No.475/2003 is being reheard for disposal. The factual matrix of the case succinctly, may be noticed that the appellant, Shri Ratan Jasarasaria, by means of the present Appeal no. 475/2003, challenged the Adjudicating/Impugned Order No. 29/2003/DD(ADJ) dated 29.08.2003, passed by Deputy Director, Enforcement Directorate, Calcutta, imposing a penalty of Rs. 7,00,000 (Rupees seven lakhs only) and Rs. 40,000 (Rupees forty thousand o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was a co-noticee Pawan Poddar in the subject Show Cause Notice (SCN) proceeding, whose appeal no.463/2003 was also dismissed by the common order of the Tribunal, dated 08.08.2008 along with the appeal no.475/2003 of the present appellant. The Hon'ble Calcutta High Court, vide FEA No. 1 of 2009/titled as Pawan Poddar v. Dy. Director [2011] 105 SCL 160 had set aside the impugned order qua Pawan Poddar as there was no evidence and the appeal of Pawan Poddar was allowed. The judgment of the Hon'ble High Court in Pawan Poddar case (supra) covers the facts of the present case and therefore appeal filed by the appellant may be allowed as the appellant has been falsely implicated in this case by the officers of the Enforcement Department because the statements were obtained by practicing duress, torture. So, the penalty imposed on the appellant is illegal, excessive & unreasonable. Hence, the Adjudicating Order No.29/2003/DD(ADJ) dated 29.08.2003, passed by Deputy Director, Enforcement Directorate, Calcutta, imposing a penalty of Rs. 7,00,000/- (Rupees seven lakhs only) and Rs. 40,000/- (Rupees forty thousand only) for contravention of provisions of Section 9(1)(f)(i) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jasarasaria was doing Share-Brokery business and his office was situated at 4, Synagogue Street, Room No. 912, 9th floor, Calcutta. Soiaction Under Section 37 of of the FER Act, 1973 was taken at the office and residence of Shri Jasarasaria at the given addresses by the officers of the Enforcement Directorate on 27.2.1991. As a result of the searches, Rs. 63,000/- in cash and five items of documents from the residence and three items of documents from the office of Shri Ratan Jasarasaria was examined under section 40 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as PERA 1973) by the officer of Enforcement in respect of the documents seized from his premises. In his statements, dated 27.2.1991 and 28.2.1991 in clarification of the documents he, Stated that he was engaged in the sale and purchase of shares locally against brokerage/commission; that the was also doing local hundi business i.e. transfer of money from Calcutta to Delhi, Bombay against commission; that apart from his said activities, he was also engaged in the transfer of funds from Calcutta to abroad mainly Hongkong/Singapore from November 1990 through one Mr. Masoom of Bombay, having telephone n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by the HongKong and Shanghai Bank, Hongkong and Mr. Masoom's counterpart in HongKong Mr. Kenny confirmed that the payment was affected by bank draft on 02.01.1991 in the account of the said Miss Toy of USA; that he knew the said Shri Dilip Kumar Nahata for the last about 2/3 years through share market. It is further added that the particulars of Swiss Bank account no., name and telephone number of Firoze Bhai of Hongkong, as well as the name, address, telephone number, Bank's name and account number of Miss Imtiyala Toy were also disclosed from the seized documents and these were admitted by the appellant, Noticee No. 1 before the officers, while recording his statements. Shri Dilip Kumar Nahata in his statement dated 27.2.1991 and 28.2,1991 admitted that he had made the payment of Rs. 2,28,000/- to Shri Ratan Jasarasaria for the transfer of the fund abroad as per the request of his friend Shri Abhay Chand Bardia, who subsequently made the payment to him (Dilip Kumar Nahata). Shri Ratan Jasarasaria also furnished the full names, addresses and telephone numbers of those persons and decoded the coded amounts. Without having any transactions with those persons, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply to the said retraction petition was filed by the Deptt., on 5.3.1991. Shri Jasarasaria in his further petition, filed on 14.3.1991 before the Ld. C.M.M. Calcutta also retracted from his said statements and counter petition dated. 20.3.1991, filed by the Department, Ld. ALA further submitted that Shri Ratan Jasarasaria in his statement dated 27.2.1991 admitted that he had received an amount of Rs. 1,37,700/- in two instalments from Shri Shiv Kumar Ruia on 26.2.1991 i.e in the morning as well as in the evening for transfer of US$,6000/- outside India. Shri Ratan Jasarasaria also received an amount of Rs. 2,29,500.00 in the evening of 26.2.1991 from Shri Anshar (i.e. Anzarul Haque) for transferring equivalent foreign exchange outside India. Shri Ratan Jasarasaria further stated that the amount of Rs. 3,63,000/- seized from his residence on 27.2.1991 was part of the total amount of Rs. 3,67,200.00 (Rs. 1,37,700 plus Rs. 2,29,500,00) received by him from the said Shri Shiv Kumar Ruia and Shri Anshar (Shri Anzarul Haque) on 26.2.1991 and that had the amount not been seized by the officers, he would have transferred the entire amount to Singapore and Hongkong through the said Mr. Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m with his counterpart Mr. Kenny, stationed in Hongkong and "Gaffar" stationed in Singapore through whom the payments in Foreign Exchange were arranged by the said Mr. Masoom in respective places. On the basis of names/addresses/telephone numbers, revealed in the seized documents coupled with the statements of Shri Ratan Jasarasaria, follow up actions were taken by the officers of Enforcement on various dates. On the basis of investigation, a Joint Show Cause Notice No. T-4/3-C/92(SCN), dated 21.2.92 was issued to the concerned persons, including the appellant Shri Ratan Jasarasaria. The appellant Shri Ratan Jasarasaria denied all the allegations in reply of the SCN. The Adjudicating Authority Vide its Order No. 29/2003/DD(Adj.) dated 29.08.2003, passed by be Deputy Director, Enforcement Directorate, Calcutta imposed the following penalties on the basis of Joint Show Cause Notice No. T-4/3-C/92(SCN) to the concerned persons mentioned below'.-- 1. Shri Ratan Jasarasaria. for contravention of the provision of section 9(1)(f)(i) of FERA, 1973, a penalty of Rs. 7,00,000/-(Rupees Seven lakhs only) and Rs. 40,000/- (forty thousand only) for contravention of the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d all the above mentioned appeals. Thereafter, Shri Pawan Poddar challenged the order of the Tribunal before the Hon'ble Calcutta High Court. The Hon'ble Calcutta High Court, vide FEA No. 1 of 2009, titled as Pawan Poddar (supra) allowed the appeal & set aside the order of the Tribunal. However, the Hon'ble Calcutta High Court in its order titled (supra) clearly observed that this judgment is confined to this case only & will not be applicable in other cases. Hence, the judgment titled (supra) is not applicable in the present case as the retracting confessional statement of the appellant is fully corroborated by the seized documents and other evidence, which are important factors to prove the charges against the appellant. Shri Ratan Jasarasaria also challenged the order of the Tribunal, dated 08.08.2008 before the Hon'ble Calcutta High Court Vide GA No.4129 of 2008, FEA No.28 of 2008, decided on 28.01.2010, titled as Shri Ratan Jasarasaria (supra) wherein the Hon'ble Calcutta High Court had set aside the order of the Tribunal, dated 08.08.2008 pertaining to Appeal No.475 of 2003 and the entire matter was remanded for fresh hearing. The Hon'ble Calcutta High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e charges against the appellant. Hence, the appellant was rightly held guilty of the charges u/s 9(1)(f)(i) & 9(1)(f)(ii) of the FERA, 1973 to the extent mentioned in the respective Show Cause Notices. 9. Arguments have been heard and record has been perused. 10. Taking into consideration all the facts and circumstances of the case, I find modicum of merit in the submissions of Ld. ALA for the respondent when he submitted that the judgment of the Hon'ble Calcutta High Court, vide FEA No. 1 of 2009, titled as Pawan Poddar (supra) not applicable in the present case as the Hon'ble Calcutta High Court in its order titled (supra) has clearly observed that this judgment is confined to this case only & will not be applicable in other cases. Hence, the judgment titled (supra) is not applicable in the present case as the retracting confessional statement of the appellant is fully corroborated by seized documents and other evidence, which are important factors to prove the charges against the appellant. There is no momentum of force in the submissions of Ld. Counsel for the appellant. Therefore, much importance cannot be given to the retraction petition, because the appellant in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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