TMI Blog2015 (2) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... bereft of the demand of cross-examination and, it appears, he had no dispute at all about the issue of cross-examination of witnesses. For the reasons stated herein, the question of cross-examination does not arise and the adjudication order now is not vitiated for want of opportunity to cross-examine the witnesses. Whether the Adjudicating Authority is justified in re-adjudicating the case to the extent that was already decided by this Tribunal by Order dated 19-7-2002. - Held that:- remitting back the case to the Adjudicating Authority by the Hon’ble High Court of Karnataka was for conducting a fresh enquiry into the allegation as made in the SCN and adjudicating the case according to law. The word “fresh enquiry” in this case means conducting the adjudicating proceedings over again setting aside the earlier Adjudication Order. When the fresh enquiry led to passing of the present Adjudication Order which replaced the earlier Adjudication Order, this Tribunal’s Order dated 19-7-2002 passed in Appeal No. 779/1993 against earlier Adjudication Order is non-existent in the eyes of law. Therefore, exoneration of the appellant of charges under Section 9(1)(b) & (d) of FERA, 1973 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been relied upon in the adjudication proceedings. Since the complaint was discharged exonerating the appellant of criminal prosecution and the respondent had not challenged the Order of exoneration, the impugned order passed in pursuance of the SCN supported by the same set of evidence is liable to be quashed and set aside. As regards the penalty, the Adjudicating authority is vested with power to impose penalties under Section 50 not exceeding five times the amount or value involved in any contravention. I am, therefore, of the view that the penalties imposed on the appellant are commensurate with the quantum of amounts involved in the contravention. - Reason to interfere in the impugned order in so far as it relates to the levy of penalties of ₹ 5,70,000/-, ₹ 4,80,000/- & ₹ 8,50,000/- on the appellant respectively for contravention of Section 9(1)(b), 9(1)(d) & 9(1)(d) r/w Section 64(2) of FERA, 1973 and also to the confiscation of ₹ 8.50 lacs under Section 63 of the Act. - Decided against assessee. - Appeal No. 19/2011 - - - Dated:- 19-11-2012 - Shri E. Jagannadha Reddy, Member Shri Kiran S. Javali, Advocate, for the Appellant. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Regn. No. CRX 1220, along with a gunny bag placed in the leg space of the scooter; that thereafter, the appellant and his baggage was thoroughly searched under Section 34 of FERA, 1973; that as a result, ₹ 8.50 lacs, documents in two sheets from the shirt pocket of the appellant, 8 Newspaper wrapper sheets in which the Indian currency was wrapped were seized under Panchnama dated 6/7-1-1989. Besides, the appellant s business and residential premises were also searched under Section 36 of FERA, 1973. His residential search resulted in recovery of documents in 12 sheets and also one diary and nothing from his shop. 5. The SCN was first adjudicated by the erstwhile Adjudicating Authority under Adjudication Order SDE (R) IV/124/92, dated 27-11-1992 against which the appellant filed an appeal before this Tribunal. This Tribunal passed an Order on 19-7-2002 partly allowing the Appeal No. 779/1993 filed by the appellant. Though the appellant was exonerated of the charges under Section 9(1)(b) 9(1)(d), the appellant filed an appeal MFA No. 6721/2062 (FERA) under Section 54 of FERA, 1973 in the Hon ble High Court of Karnataka, challenging the order of imposition of penalty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regoing that they were not averse to be cross-examined by the appellant and were ready for the same had they been given an opportunity. However, Sh. Kiran S. Javali, Counsel for the appellant chose not to pursue the cross-examination but preferred the case to be decided on the written submission he proposed to make and requested the Adjudicating Authority to conduct the proceedings on the basis of facts and evidence on record. Sh. Kiran S. Javali, Counsel for the appellant filed his written submission on 19-10-2010 which is taken into record. Therefore, I am of the view that appellant by choosing not to proceed with cross-examination of witnesses has himself given a go by to the direction of the Hon ble High Court. Even his written submission is bereft of the demand of cross-examination and, it appears, he had no dispute at all about the issue of cross-examination of witnesses. For the reasons stated herein, the question of cross-examination does not arise and the adjudication order now is not vitiated for want of opportunity to cross-examine the witnesses. 10. The next question is whether the Adjudicating Authority is justified in re-adjudicating the case to the extent that was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sh. Gangadharan, Assistant Enforcement Officer that there was a prior intelligence on the movement of the appellant on or about 2100 hrs. at the spot where he was apprehended and he would be having at his person certain amounts which was meant for distribution in violation of the provisions of the Act. Since it was very late in the night, considering the safety and security of the appellant he was taken to the office of DRI for the search of his person and the scooter for which witnesses were called to the office and a thorough search resulted in seizure of ₹ 8.50 lacs wrapped in newspaper sheets kept in gunny bag in the leg space of his scooter and of documents in 2 sheets recovery of which has not been disputed by the appellant. Therefore, I also concur with the finding of the ld. Adjudicating Authority that the conduct of the search at the office of DRI at Mangalore by the officers of Enforcement Directorate and DRI does not impair the adjudication proceedings. 12. As regards the statement of the appellant Sh. Kiran Javeli, Counsel for the appellant contended that appellant s statement was not voluntary and the same has been recorded under duress and coercion and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Adjudication authorities and got relief to that extent. It is, therefore, unfailingly proven that the amount is involved in the contravention of provisions of FERA, 1973. Besides, the appellant had also stated that had the amount of ₹ 8.5 lacs not been seized, he would have handed over the same to Abdul Basit Kadli. It is implicit that there was an attempt to make payment of that amount to Abdul Basit Kadli and that that attempt was foiled by the Enforcement officers by seizing that amount before it being handed over to him. Therefore, charge under Section 64(2) r/w 9(1)(d) is sustainable as also the confiscation under Section 63 of FERA, 1973. 13. As regards the criminal complaint initiated by the respondent under Section 56 of FERA, 1973, the appellant submitted that the complaint was supported with the same set of evidence that have been relied upon in the adjudication proceedings. Since the complaint was discharged exonerating the appellant of criminal prosecution and the respondent had not challenged the Order of exoneration, the impugned order passed in pursuance of the SCN supported by the same set of evidence is liable to be quashed and set aside. This cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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