TMI Blog1997 (4) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... ange Regulation Appellate Board in its order dated June 26, 1992, have dealt with the factual details and it is unnecessary for us to advert to all those details having regard to the narrow controversy raised before us and involved in these appeals. Under the impugned orders, a penalty of Rs. 5,000 was imposed on Associated Travels (P.) Ltd., the appellant in C.M.A. No. 1211 of 1993, for the alleged contravention of section 9(1)( b ) of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as "the Act"), and the levy of penalty of Rs. 5,000 was imposed under section 9(1)( a ) of the Foreign Exchange Regulation Act, 1973, on S. Parameshwaran, the appellant in C.M.A. No. 1210 of 1993, and the confiscation of Rs. 99,800 under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants in respect of such plea did not have the approval or acceptance of the authorities below including the Appellate Board. Hence, the above appeals. Though several grounds have been raised in the memoranda of appeals, Mr. K. Asokan, learned senior counsel appearing for the appellants, projected in the forefront of the plea that the materials on record are not enough to treat the said Hameed Abdul Kader as a person resident outside India and therefore, the alleged violation of section 9(1)( a ) or 9(1)( b ) of the Foreign Exchange Regulation Act has not been made out and consequently, the impugned proceedings are liable to be set aside. In elaborating this aspect of the matter, learned senior counsel for the appellants contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provided in and in accordance with any general or special exemption from the provisions of this sub-section on which may be granted conditionally or unconditionally by the Reserve Bank, no per son, in, or resident in India, shall. . . . . ( a )make any payment to or for the credit of any person resident outside India ; ( b )receive, otherwise than through an authorised dealer, any pay ment by order or on behalf of any person resident outside India. . . . . "Person resident outside India" is defined in section 2( q ) as meaning a person who is not resident in India and 'person resident in India' is defined in section 2( p ) and so far as it is relevant for our purpose is as follows : "(1) a citizen of India, who has, at any time a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia for an uncertain period, he cannot be dubbed as a person resident outside India. The question, though is a question of law, would depend very much on the proof of necessary facts which go as inevitable ingredients to prove the status of a person before he could be attributed with the status of being a person resident outside India, particularly in a case, where he is indisputably a citizen of India. Learned counsel appearing on either side invited our attention elaborately to the relevant findings and the manner of consideration adopted by the authority below as also the Appellate Board, and placed strong reliance on the materials adverted thereto, of which, as noticed earlier, strong reliance has been placed on the information contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the definition contained in section 2( p ) of the Foreign Exchange Regulation Act and thereby became a person outside India as defined in section 2( q ) of the Foreign Exchange Regulation Act. Since the proof of the charges against the appellants and the order of adjudication involve serious consequences, the necessary ingredients on the basis of which the appellants could be condemned, namely, that the person to whom the amount of Rs. 1,00,000 was paid and the person who repaid the said amount, is a person resident outside India, the charge against the appellants could not be claimed to have been proved by any legally acceptable evidence. In the absence of any concrete materials or legally acceptable evidence, to prove the basic and es ..... X X X X Extracts X X X X X X X X Extracts X X X X
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