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TMI Blog2017 (9) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... red to as "Appellate Tribunal"), whereby a penalty of Rs. 5 Lakhs was imposed on the appellant for contravention of Section 8(3) and Section 8(4) of FERA. 2. Brief facts of the case are that based upon information received from the Reserve Bank of India (hereinafter referred to as "RBI"), about non-submission of relevant proof of import in relation to the remittance of foreign exchange for seven imports made by the appellant company, the respondent department issued two letters to the appellant company dated 08.06.2001 and 24.04.2002 to explain their position. When no reply was received from the appellant company, a Show Cause Notice (hereinafter referred to as "SCN") dated 30.05.2002, was issued to the appellant company. It was alleged by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tead of statutory pre-deposit amount. Thereafter, the Appellate Tribunal heard the matter and vide order dated 17.06.2007 set aside the order of the adjudicating authority and remanded the matter for afresh adjudication. 6. The Adjudicating Authority in the second round of adjudication vide order dated 31.03.2010 held that the appellant had failed to show the Exchange Control copies of Bill of Entries against the remittance of DM 16000 and JPY 9600000 and imposed a penalty of Rs. 35Lakhs and dropped proceedings with respect to the other five remittances. 7. The order dated 31.03.10, was assailed before the Appellate Tribunal and vide order 22.08.2014, the Chief Manager of the Punjab National Bank (hereinafter referred to as "PNB") was dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iculars in relation to the amount of DM 16000, as mentioned in the annexure to the SCN are vague; that before the appellant could reply to the letter dated 24.04.2002, the ED issued SCN to them to which they duly replied; that the impugned order relies upon reverse burden of proof thus breaching the principles of natural justice. 10. The learned counsel for the appellant further submits that the appellant has throughout maintained the position that the said remittance does not relate to the appellant company and has since asked the respondent department to provide them with details in respect to the contentious remittance for the appellant to trace the details of the transaction. It was further contended by the learned counsel that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 8 (4) of FERA reads as under: "8 (3) Where any foreign exchange is acquired by any person, other than an authorised dealer or a moneychanger, for any particular purpose, or where any person has been permitted conditionally to acquire foreign exchange, the said person shall not use the foreign exchange so acquired otherwise than for that purpose or, as the case may be, fail to comply with any condition to which the permission granted to him is subject, and where any foreign exchange so acquired cannot be so used or the conditions cannot be complied with the said person shall, within a period of thirty days from the date on which he comes to know that such foreign exchange cannot be so used or the conditions cannot be complied with, sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceed against the respondents unless it is shown that they were parties to the arrangements, if any. As no sufficient material much less any material has been placed on record to substantiate the stand of the appellant, the conclusions of the Commissioner as affirmed by the CEGAT cannot be faulted." 16. Further, it is a settled principal of law that "Affirmati Non Neganti Incumbit Probatio", that is, "the burden of proof is upon him who affirms - not on him who denies". Similar view has been expressed by the Supreme Court in the case of Bhagwan Jagannath Markad and Ors Vs. State of Maharashtra reported in (2016) 10 SCC 537, holding, "18. It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ascertain, prima facie, the authenticity of the contentious remittances, in relation to which they started the adjudication proceedings. Considerable doubt is thus, cast upon the claims of the respondent with respect to the remittance in question (DM16000) also, as there can be a likelihood situation that the appellant company never made such a remittance as has been claimed by their learned counsel since the time the appellant company established their first communication with the respondent department, in relation to the allegations against them with respect to the then seven contentious remittances, vide letter dated 28.06.2002, wherein it was mentioned as under, "In respect of this amount of DM16,000 dated 4-6-93 my clients have not b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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