TMI Blog2019 (8) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice. No explaination is given during the course of hearing - The customs authorities did not initiate any proceedings against the appellant after the receipt of a reply submitted by the appellant. It is also a matter of fact that the Customs as well as the Enforcement had searched his residential premises, nothing was seized therefrom. The appeal is disposed of with the direction that the 25% of the penalty amount already deposited by order dated 31.07.2017 i.e. a sum of ₹ 5 Lakhs shall appropriated by the respondent and a full and final penalty amount in view critical condition and bad health of the appellant - appeal disposed off. - FPA-FE-30/COCHIN/2014 - - - Dated:- 16-7-2019 - Justice Manmohan Singh Chairman For the Appellant : Shri Jaimon Andrews, Advocate For the Respondent : Ms. Aagam Kaur, Legal Consultant JUDGEMENT FPA-FE-30/COCHIN/2014 1. By this order, I propose to decide the present appeal which was filed against the order dated 28.02.2014. 2. On 18.08.2001, the officers of Central Excise and Customs Commissionerate, Calicut, condu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons to whom payments were to be made and that he used to make payments as per the lists. He further stated that Shri Kunhimon used to get foreign made gold biscuits; that the sale proceeds of these gold biscuits were used by Shri Kunhimon for making compensatory payments; that besides him there were other persons like Mansoor, Samad, Mohammed etc. who were working for Shri Kunhimon and that he was getting a remuneration of ₹ 750/- per week for doing the above work for Shri Kunhimon. Regarding the Indian Currency of ₹ 15,24,00/- seized from the residential premises of Shri Pulikuth Hamzath Abdusalam, Shri Musthafa stated that the same was also meant for distribution as compensatory payments. He further explained that the e-mail messages and fax messages seized from the residential premises of Shri Kunhimon contained instructions from Gulf to make payments to various persons and that the amounts mentioned in these documents were written after deleting the last 3 zeroes. 2.4. Shri Pulikuth Mohammed @ Bappu, S/o late Kunhammed Haji, veembur, P.O. Muriyad, manjeri, Malappuram district, who is a distant relative of Shri Pulikuth Hamzath Abdusalam @ Kunhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng money to persons under instructions from abroad; that apart from this, Shri Kunhimon was also doing business of gold and that as directed by Shri Pulikuth Hamzath abdusalam @ Kunhimon he had gone to certain places for distribution of amounts and that he could not remember as to whom all he had paid the amounts and how much money was paid by him in this manner. 3. Scrutiny of the documents at Sheet No. 1/33 to 11/34 (e-mail message) seized from the residence of Shri Pulikuth Hamzath Adusalam by the Customs on 18.8.2001 indicated receipt of several payments by the Noticee during July- August 2001. Hence, the residential premises of the Noticee at North Annara were searched by the Officers of directorate of Enforcement, Calicut on 23.07.2002 under Section 37 of the FEMA, 1999 read with Section 132 of the Income Tax Act, 1961. However, nothing was seized. The search was attended by Smt. Rabiya, W/o the Noticee and the notice was reported to have gone out. 4. The officers of the Enforcement recorded the statement of the appellant as early on 29/04/2003 and the complaint was filed with the Joint Director on 04/12/2012, i.e., after a period of more tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the facts relating to the alleged entries, he could not trace out the same as the same was misplaced/irrecoverable lost. 9. Even as per the allegations contained in the complaint the appellant had allegedly received the payments to a total tune of ₹ 1,55,60,000/- from Pulikuth Abdusalam under the instructions of a person resident outside India. There is not whisper regarding the efforts made if any by the department either to apprehend Pulikuth Abdusalam or to record a statement from him. 10. It is stated on behalf of appellant that M Moidu Haji, Annara figured in the seized documents is not the appellant. He had specifically stated in his statement dt 29/04/2003 before the Enforcement that he did not know the person Pulikuth Hamzath Abdusalam; that the documents reflect only the name Moidu Haji Annara and that neither his father‟s name nor the house name nor the address of the said Moidu Haji were written. Hence the conculsion that the person referred as Moidu Haji Annara in the seized documents is the appellant is wrong and legally not acceptable. It is alleged that in the light of the statement of the appellant, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to establish the contention that there are other persons with name Moidu Haji in Annara. 14. The statement recorded from the appellant does not contain any admission/confession and instead contains clear denial of any involvement in the case. The issuance of the show cause notice and the findings of guilt solely basing on the discrepancy in the travel details of the appellant is unsustainable. 15. As far as merit of the case is concerned, it has come on record that on the relevant date, the appellant was in India as per pass-port details produced by the respondent. The appellant has also failed to produce his pass-port when his counsel was asked who only stated now that the same is not traceable. Therefore, presumption is that he may be the same person as alleged by the respondent. 16. It is stated that he is a poor old man and suffering from Parkinson Diseases and showing symptoms of Alzheimer‟s Diseases. He has also loss memory. The delay in issuing the show cause notice running into ten years without any valid reason for modification of order. 17. The said long delay is unexplained in issuing the show c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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