TMI Blog2017 (8) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... MLA- 2355/DLI/2016 (Review) 1. We have heard the submissions of both counsel in the application under section 35 (2) (f) of the PMLA, 2002 for review of Judgment dated 31.12.2015 passed in FPA-PMLA-828/DLI/2015. 2. The operative part of the impugned order reads as under: In view of the above discussed facts and circumstances and provisions of law and considering the second prayer of the appellant, the impugned order dated 6.2.2015 in respect of allowing retention of jewellery is set aside and remanded to the Adjudicating Authority for readjudication within 180 days from the date of this order. The Adjudicating Authority shall give an opportunity of hearing under section 8 of PM LA to all the parties claiming rights in the seized property. The Adjudicating Authority shall in accordance with the provisions of sub section (2) of section 8 of PMLA, record a finding whether all or any of the jewelleries seized are involved in money laundering and accordingly pass an order, if any, under sub-section (3) of section 8 of PMLA. This Tribunal has not expressed any opinion on merits of the source of income, earning or assets out of which or by means of which the appellant has acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower of this Hon'ble Tribunal in passing order in Appeals, under section 26 (4) is in pari material with section 35A (3) of the Central Excise and Salt Act, 1944 after the said amendment in 2001 Accordingly, in the absence of express provision for remand this Hon'ble Tribunal lacks power and jurisdiction to pass an order of remand. (ii) The appeal under the Act is not an action at common law nor in equity, it is a statutory proceeding to which neither the common law nor the principles of equity apply but only those provisions which the statute makes and applies. It is a special jurisdiction and special jurisdiction has always been exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to appeal under the Act unless statutorily embodied. This Tribunal has no right or jurisdiction to them. In fact, if the Tribunal is allowed to remand the proceedings the time frame prescribed for adjudication and for that matter retention of properties under the Act, without any adjudication about the properties being involved in money laundering will get nullified and the Department will have an unbridled discretion to contin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 173 Cr. P.C. report, the Investigating Agency investing the scheduled offence is only having a reason to suspect of the commission of the crime and not reason to believe of commission of a crime, In the absence of such reason to believe that a scheduled offence has been committed, one cannot say that a person can have reason to believe that there is proceeds of crime {scheduled offence). If the Investigating Agency yet is to have such reason to believe, it is surprising how the Adjudicating Authority can have reason to believe of the Applicant being in possession of proceeds of crime, without a crime there cannot be proceeds of crime. (v) That the Tribunal has failed to appreciate that the Adjudicating Authority has not applied his mind to the material placed before him before issuing a notice under section 8 (1) of the Act. On receipt of the original application the Adjudicating Authority has issued notice to show cause dated 22.10.2014 calling upon the Applicant to indicate the sources of income etc. by which he has acquired the property provisionally attached under sub section (1) of Section 5 of PMLA. It was only later on that the second show cause notice dated 20.11.2014 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough a review petition. Further, in case of Adjudicating Authority, records cannot be corrected through review since there is no provisions of review in case of the Adjudicating Authority. Thus the impugned order dated 31.12.2015 in remanding the matter is otherwise bad both in law and facts of the case and is liable to be reviewed by this Tribunal in exercise of its powers and jurisdiction under section 35(2)(f) of the Act. 4. Mr. P.V. Kapoor, the learned Sr. Counsel for the appellant has referred various provisions of the Act and rules and has also referred various decisions in support of his submission in support of the grounds raised by the appellant in the review petition. 5. Mr. Vikas Garg, learned counsel appearing on behalf of respondent has strongly opposed the prayer of the review application. It is argued by him that review of the order dated 31.12.2015 passed by this Ld. Appellate Tribunal, Prevention of Money Laundering Act is not maintainable and even otherwise the same cannot be heard by this Tribunal in view of pendency of writ-petition challenging the same very order and the relief sought is also similar to the relief claimed therein. It is stated by him th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .02.2015 was clarified by Division Bench of Delhi High Court, inter alia, clarifying that all further proceedings pursuant to impugned order of provisional attachment including proceedings under section 8 of PMLA for confirmation of provisional attachment shall remain stayed and on 15.01.2016 the present review petition was filed. 7. It is admitted position that LPA is still pending before the Hon ble Division Bench of Delhi High Court wherein the Provisional Attachment order dated 15.11.2014 passed by the Ld. Adjudicating Authority PMLA has been challenged. That on 13.02.2015 the Hon ble division Bench passed the following order:- Pending further orders, the respondents are restrained from initiating any further steps pursuant to the impugned order of attachment against appellants/petitioners 8. Apparently in the said LPA after passing of the said order the Respondent has been restrained from initiating any steps pursuant to the said attachment order against the appellants/petitioners. 9. It is also admitted fact that in the said L.P.A. the Petitioners filed a clarification Application bearing No. 3697 of 2015 on which the following order dated 27.02.2015 came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en attachment and possession / custody of the attached property. 4. It is contended that the jewellery of the petitioners in the present case was seized on 22nd September, 2014 and the period of 180 days for which the respondents could have retained possession thereof under Section 21 of the PMLA expired on 22nd March, 2015. 5. Attention in this regard is invited to: (I) Section 17(iv)(c) of PMLA providing for seizure of property: (II) Section 20(1) (3) of PMLA to contend that on expiry of the period of 180 days, the property seized has to be returned to the person from whom such property was seized, unless the Adjudicating Authority under Section 17(4) permits retention of the property for any longer period; (III) the fact that respondents did not invoke Section 17(4) of PMLA in the present case; (IV) the fact that only if the respondents had invoked Section 17(4) of PMLA, would the Adjudicating Authority under Section 20(4) of PMLA have authorised retention of the property for a longer period; (V) to Section 8(1),(3) (4) of PMLA but it is contended that the same are not applicable to the facts of the present case; (VI) to Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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