TMI Blog1982 (2) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation Act, 1947, hereinafter referred to as the Act, both by the initial authority as well as by the Foreign Exchange Regulation Appellate Board, hereinafter referred to as the Appellate Board and in these appeals they are challenging the orders passed by the Appellate Board. 3. On 27th January, 1974, the residence of one Abdul Aziz, the appellant in C.M.A. No. 288 of 1980 and his wife, the appellant in C.M.A. No. 289 of 1980 were searched. During the search a few foreign letters, account sheets, a note book containing certain accounts and particulars, four pocket diaries, a cheque book relating to an account in the Indian Overseas Bank, Kumbakonam standing in the name of Abdul Azeez and foreign exchange valued at 295, US 4, Brunei D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued to them to show cause why they should not be proceeded against for violation of the provisions of the Act. All the three persons filed objections to the show cause notices and after considering their objections, the Additional Director found the appellants guilty of the charges levelled against them in the show cause notices and on the basis of their statements as well as the documents and other materials seized from the residence of Abdul Aziz. All the three filed appeals before the Appellate Board. Before the Appellate Board it was contended that the transactions referred to in the show cause notices did not involve foreign exchange and, therefore, there was no violation of any of the provisions of the Act. However, the Appellate Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty amount of Rs. 45,000 levied under Section 5(1)(aa) by the Director of Enforcement should be reduced to Rs. 30,000. The Appellate Board, however, sustained the penalty of Rs. 3,000 awarded for contravention of Section 5(1)(c). 5. Basheer, the appellant in C.M.A. No. 290 of 1980, is found to have contravened; Sections 5 (1)(aa) and 5(1)(c) in respect of Rs. 40,000. Out of the said sum of Rs. 40,000, he has delivered a sum of Rs. 20,000 to Hawa Beevi, wife of Abdul Aziz and kept the balance of Rs. 20,000 with him. The said sum of Rs. 20,000 received by Hawa Beevi forms part of the sum of Rs. 1,26,000, which is the subject-matter of the charge as against Hawa Beevi. Since Basheer has admitted in his statement the receipt of Rs. 40,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the repealed Act in so far as it is not inconsistent with the provisions of the Act, should be deemed to have been done or taken under the corresponding provisions of the Act. The submission of the learned Counsel for the appellants is that if anything has been done or action taken under the 1947 Act in respect of the foreign exchange violation by the appellants, that could be saved and that in this case everything including the raid has been done after the new Act came into force, and therefore, Section 81 will not come to the aid of the department. However, the learned Counsel, in our view, has overlooked the provisions in Section 81(3), which makes the provision of Section 6 of the General Clauses Act, 1897, with regard to the effect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a perusal of Section 19(E) shows that the said Section constitutes the Director of Enforcement as an authority to conduct adjudication proceedings and to conduct an enquiry in connection with any violation. In this case the enquiry and the adjudication have actually been conducted by the Additional Director of Enforcement and, therefore, there is no violation of Section 19(E). Taking of a statement at the stage of the preliminary investigation preceding the adjudication proceedings cannot attract Section 19(E). Therefore, even though the statements, have been taken from the appellants; by the Officers subordinate to the Director of Enforcement that will not violate Section 19(E), as alleged by the appellants' learned Counsel. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustained by the Appellate Board. The learned Counsel for the appellant in C.M.A. No. 289 of 1980 contends that the levy of even the reduced penalty of Rs. 30,000 is excessive having regard to the fact that she being the wife of Abdul Aziz had no other go except to act as per his instructions, that as the wife she cannot refuse to receive the amount sent by the husband for the benefit of the family and, that though there is technical violation by her by the receipt of the amount through persons resident in India on instructions from her husband who is residing outside India, her conduct in receiving the amount should be viewed leniently. On the ground that a substantial portion of the amount received by her was utilised for the benefit of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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