TMI Blog1982 (2) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. On information that the appellant has received certain payments from a person in India under instructions from a person resident abroad the appellant was summoned to appear before the Chief Enforcement Officer. He gave a statement that two sums of Rs. 2,000 and Rs. 3,000 were received by him by sale of paddy and denied that the said amounts received by him represented payments received under instructions from a person residing abroad. As the statement given by him was found not satisfactory on enquiry, again he was summoned to appear on 3rd March, 1976 and on that date he gave a statement that his co-brother S.M. Ibrahim working in Singapore as a clerk in a shop represented to him in September, 1973, that he has arranged to send a sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... native place. Accordingly the case was adjudicated on 3rd March, 1976. The Assistant Director of Enforcement gave a personal hearing to the appellant and during the personal hearing, he had admitted the contravention of the provisions of the Foreign Exchange Regulation Act, 1947, to the extent of Rs. 2,000 and the provisions of the Foreign Exchange Regulation Act, 1973, to the extent of Rs. 3,000. He further pleaded that the contravention was out of ignorance of law and that the transgression was unintentional. The Assistant Director of Enforcement, after perusal of the records and the statements made by the appellant both before and at the time of the personal hearing, found that the appellant had contravened Section 5(1)(aa) of the 1947 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 19th September, 1973, in respect of such receipt action has to be taken only under the 1973 Act and the show cause notice in respect of that receipt based on the violation of the provisions of the 1947 Act cannot be legally sustained. (3) As regards the receipts in February and May, 1974, they will not amount to violation of the provisions of Section 9(1)(b) of the 1973 Act as the Explanation to that section cannot be applied as the Department has not proved that there is no inward payment as contemplated in that Explanation. 5. So far as the first contention is concerned, it is not in dispute that though the appellant originally denied the receipt of the amount through a person in India on the instructions given by a person residing i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeds on the basis that on the instruction of his co-brother at Singapore a third party drew a cheque and handed over the cheque to the appellant instead of bringing the cash and giving it to the appellant, he had brought a cheque drawn on some local bank and gave it to the appellant. This cannot be said to be in the nature of the amount being transmitted from the appellant's co-brother from Singapore to the appellant residing in India. In this view of the matter, the finding of the authorities below that the appellant has committed violation of Section 5(1)(aa) cannot be interfered with. 6. On the second question that in respect of the violation that has taken place before the 1973 Act came into force the 1947 Act cannot be invoked a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be deemed to have received such payment otherwise than through an authorised dealer. According to the learned Counsel for the appellant though Section 9(1)(b) containing the above Explanation restricts the application of the provision in Section 9(1)(b) only to receipts without a corresponding inward remittance from any place outside India, a close reading of the Explanation shows that it is intended to cover cases of payments received by order or on behalf of an authorised dealer in which case further proof that the receipt was without a corresponding inward remittance from any place outside India is necessary. In this case the Explanation does not come into play for the amount has not been received by order or on behalf of an autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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