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TMI Blog2023 (7) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner which this Hon'ble Court may deem fit and proper in the facts and circumstances of the aforesaid case. 2. Petitioner owned Cloth Stores by name Zaibash Cloth Stores at Madanpura, Mumbai. On 12th May, 1988, the officers of Enforcement Directorate (for short E.D.), raided Petitioner's Cloth Stores and seized cash from his cash box in Indian currency being an amount of Rs. 1,78,000/- and few other documents. 3. On 5 May, 1989, a Show Cause Notice was issued by the Assistant Director of Enforcement, to the Petitioner, alleging contravention of Section 9(1)(b) and Section 9(1)(d) of Foreign Exchange Regulation Act, 1973 (for short FERA). The said Show Cause Notice stated that the Petitioner had received Rs. 45,000/- from persons residing outside India and made payment on behalf of person, who was residing outside India. 4. The Petitioner responded to the said Show Cause Notice on 1 June, 1989 by submitting a reply to the Assistant Director of Enforcement, Mumbai. In the said reply, the Petitioner denied allegations made in the Show Cause Notice and further furnished an explanation regarding Indian currency found in his Stores. 5. The Assistant Director of Enforcement passed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- is reflected in the cash book and Balance Sheet of the firm M/s. Zaibash Colth Stores. 12. Petitioner by his letter posted on 28 February 2003, informed the Appellate Tribunal that due to poor financial condition, he was unable to attend hearing before the FEMA Appellate Triunal at Delhi and requested for hearing to be held at Mumbai. However, the hearing was conducted in absence of the Petitioner at Delhi. 13. On 24 March, 2004, the FEMA Appellate Tribunal dismissed the appeal of the Petitioner. Being aggrieved by the said Order, the Petitioner has filed the present Writ Petition. In the Writ Petition, the Petitioner is praying for setting aside the impugned Judgment & Order passed by the FEMA Appellate Tribunal on 24 March, 2004. It is also prayed that a sum of Rs. 1,48,000/- be refunded to the Petitioner, which was seized from the Petitioner's Cloth Stores on 12 May 1988. 14. By an Order dated 13 December, 2004, a Co-ordinate Bench of this Hon'ble Court had granted "Rule" on this Writ Petition. 15. Ms. Ansari, counsel for the Petitioner made submissions that the Petitioner, who was a small Cloth Stores owner, was not given a fair opportunity to defend himself and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as distributed to various persons by the Petitioner in India, thereby contravening the provisions of Section 9 (1) (b) and 9 (1) (d) of the FERA . Petitioner replied to Show Cause Notice by his letter dated 1 June, 1989, explaining his case, that his store is in Madanpura area, which is a Muslim locality and due to EID festival there was lot of sale of clothes in his store on cash basis in the month of April, 1988 and the same can be seen from the Bank statement for the month of April, 1988 which shows Rs. 1,07,000/- amount deposited in cash. 20. Pursuant to first Show Cause Notice, the Assistant Director of E.D. held enquiry under Section 51 of FERA. The Assistant Director of E.D. by its Order dated 6th October, 1989 held the Petitioner guilty of offences under Sections 9(1)(b) and 9(1)(d) of the FERA and on the ground that Rs. 45,000/- was received from a person residing outside India, and imposed penalty of Rs. 15,000/- on each of the Sections. Therefore, the E.D. deducted an amount of Rs. 30,000/- from the seized amount of Rs. 1,78,000/- and balance of Rs. 1,48,000/- was sent to the Income Tax Department. 21. Being dissatisfied with Order dated 6th October, 1989 the Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty of Rs. 22,000/- was imposed on the Petitioner. 25. An Appeal preferred before the FERA Appellate Board by the Petitioner, was subsequently transferred to the FEMA Appeal Tribunal, who heard the Appeal in the absence of the Petitioner as the Petitioner showed his helplessness to appear in Delhi due to financial constrain. The FEMA Appellate Tribunal dismissed the Petitioner's Appeal, therefore, the present Writ Petition is filed. 26. The Income Tax Commissioner (Appeals), had allowed the Appeal of the Petitioner thereby setting aside the Order passed under Section 143 (3) of the Income Tax Act. 27. The FEMA Appeal Tribunal has heavily relied upon the statement recorded of the Petitioner by the Officers of the E.D. at a time of raid/seizure. The Petitioner had retracted his statement on 25th May, 1988, a fact that the Assistant Director of E.D. while holding the Petitioner guilty of the offences under Section 9(1)(b) and 9(1)(d) of the FERA Act, had imposed penalty of Rs. 30,000/- and had deducted the said amount from Rs. 1,78,000/- which was seized from the Petitioner and the balance amount of Rs. 1,48,000/- was sent to the Income Tax Department. This fact itself prove that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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