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2016 (9) TMI 352

Head Note:
Proceedings leveled against co-noticee - appellant was resident outside India - Held that:- Nothing incriminating from the raid carried out at the residential and business premises of the appellant could be found. There is no documentary evidence in support of the allegations of the respondent. There is no evidence on record to show that the appellant was involved in any act of alleged purchase and sale of foreign currency. For the alleged credits in banks the bankers or any of the alleged recipient of the gift cheques etc. none of the said bankers or alleged recipients have identified the appellant. We are also of the view that there appears to be breach of principles of natural justice as only three dates in the entire Adjudication Proceedings were fixed in 1999 and the Impugned judgment was passed on 30-08-1999 ex-parte. There is no report: to the effect that the appellant was duly informed of the three dated fixed for the Adjudication Proceedings.

Thus in our considered view it is a case where adequate opportunity to defend was not afforded to the appellant. The proceedings were concluded within a span of six months while in another matter with identical allegations for the alleged breach by the same Adjudicating Authority, proceedings against the appellant were dropped. We are in agreement with the Ld. counsel for the appellant that proper application of judicial mind has not been made effected while deciding the proceedings and the Adjudicating Authority was not clear about the role of the appellant in the Impugned Order. He has at several occasions wrongly mentioned noticee number of the appellant to be notice No. l instead of noticee No.2. It is also relevant to mention that opportunity for personal hearing was given on 23-03-1999 while the same Adjudicating Authority fixed 24-03-1999 in connection with SCN No. T-4/2/B/96 dated 24-03-1994. The evidence of hand writing expert as per settled legal position Is a mere opinion, however, it carries some weight and the appellant had filed a report denying that the disputed writing was not in his hand. It may also be mentioned here that the standard of proof under FERA was more stringent as compared to proceedings under FEMA and the Adjudicating Authority recorded different findings in these two matters of alleged breach of identical contraventions against the appellant i.e. of dropping the proceedings in one matter and holding him guilty in the impugned proceedings. Reliance has been wrongly placed upon the retracted statement without assigning reasons. The impugned order is totally without reasons and is non speaking and smacks of arbitrariness, therefore, it is unsustainable and consequently the appeal deserves to be allowed.

 


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