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TMI Blog2024 (9) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... e applications for waiver of the pre deposit of the penalty amounts with direction to the Appellants to deposit 50% of the penalty amounts within 30 days of the receipt of the Order. The Order dated 25.01.2008 was challenged by the Appellants before the Hon'ble High Court of Delhi. The Hon'ble Court disposed of W.P. (C) 2948 of 2008 with direction to the Appellants to avail the remedy under Section 35 of the Foreign Exchange Management Act, 1999 (FEMA). The Appellants thereafter approached the Hon'ble Bombay High Court. The Hon'ble Court dismissed the FERA Appeals No. 20 of 2012 and 21 of 2012 filed by the two Appellants with direction to comply with the Order dated 25.01.2008 of this Tribunal within eight weeks. The Order sheet dated 04.08.2014 of this Tribunal has recorded that it was submitted by the Ld. Counsel for the Appellants that the Order passed by this Tribunal on the waiver applications was challenged in the Hon'ble Bombay High Court and Hon'ble High Court has disposed of the Appeals and the compliance of the Order of Hon'ble Bombay High Court has been made by the Appellants. 3. Ld. Counsel for the Appellants has argued that the Appellants had been suffering the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port documents for one year and in any case the same had been scrutinized by the bank audit team. The Respondent Directorate had sought to ignore the proprietorship status of the Appellant and erroneously charged the Appellant for abetting or attempting vis-à-vis Shri R.K. Verma. The allegation of forgery was not sustainable merely on the basis of statements. In any case statements had been retracted. He therefore, pleaded to allow the Appeals of both the Appellants. 7. Ld. Counsel for the Respondent argued that the Additional Director General (Systems), Customs and Central Excise was duly notified as Adjudicating Authority under Notification No. 6(F.No. 3/1/2002-Ad I-C)dated 28.08.2003 of Department of Revenue, Ministry of Finance, Government of India. Section 5 of FERA provided entrustment of functions of officers of Enforcement by the Central Government to officers of other Departments, including Customs and Central Excise to exercise such of the powers and discharge such of the duties of the officers of Enforcement under FERA as may be specified in the order of the Central Government. He stated that the SCN was issued on 12.01.1996 after investigation was conducted on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.1993 and 20.08.1993 stated that Shri R.K. Verma was head of Verma Group of Companies and he had opened benami firm. He denied the truthfulness of the retraction made by him on 05.08.1993.Ld. Counsel argued that S/Shri R.S. Chauhan, Dinesh C. Gandhi and K. Srivatsarao gave statements about the details of Verma Group of Companies which was headed by Shri R.K. Verma. Ld. Counsel pointed out that the Appeals No. 207/2005 filed by Shri R.N. Aayar, was dismissed by this Tribunal on 27.02.2008 and Appeal No. 141/05 filed by Shri K.C. Srivatsarao and Appeal No. 158/05 filed by Shri H.P. Bangera were dismissed on 29.10.2008 by this Tribunal. All the three aforementioned Appellants were bank employees who had been penalized under the impugned Order. 11. We have carefully considered the rival submissions and the material on record. We find that Sections 8(3) and 8(4) of FERA are worded in terms of a 'person' and there is no usage of 'importer'. Similarly, Section 9(1)(b) is also worded in terms of a 'person'. For ease of reference the Sections are reproduced below:- "8(3) Where any foreign exchange is acquired by any person, other than an authorized dealer or a money-changer, for any par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased from the bank to attract the mischief of these provisions. The Hon'ble Supreme Court in its judgment dated 19.12.1985 in the case of Life Insurance Corporation of India v/s. Escorts Ltd. & Ors. [ 1986 (1) SCC 264]observed that generally and broadly speaking, we may say that the corporate veil may be lifted where a statute itself contemplates lifting the veil or fraud or improper conduct is intended to be prevented, or a taxing statute or a beneficent statute is sought to be evaded or where associated companies are inextricably connected as to be, in reality, part of one concern. In the present case the Respondent Directorate had various statements before it, which conveyed that more than one concern was being controlled and owned by the Appellant Shri R.K. Verma. The investigations evoked suspicions as to fraud having been committed in filing of forged bills of entry with the bank. Hence, it became imperative to unearth the truth. It is, therefore, important for us to determine whether the remittances which were actually released were by Shri Verma, either directly or indirectly, and whether he was the 'person' as has been referred to in the aforementioned Sections. 13. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the investigations that the main person involved of the Appellant Shri R.K. Verma we reject the contention that the SCN was vague. The SCN issued vide Memorandum No. T-4/1-B/96(SCN) dated 12.01.1996 listed the details of 33 remittances made by M/s. Diamount between January, 1991 and April, 1991 in Annexure A. The list contains the remittances in US$ and equivalent Indian rupees noted from pages of the documents marked A obtained from the bank. All the remittances were made to M/s. Diamblue alongwith mention of TT Nos. Annexure Bto the SCN similarly shows the details of 24 remittances made to Impex Diamond. It is therefore not in dispute that the remittances were made from the bank of the value US$ 52,75,965.65. We also note from Annexure D to the SCN that vide letters Nos. S/3-172/89 DPCCand S/3-363/93 DPCC dated 02.04.1993 and 28.04.1993 respectively, AC Customs conveyed that during the period 01.04.1990 and 31.05.1991 no import of rough Diamonds was made in the name of M/s. MICO Enterprises as well as no import was effected by M/s. Diamount. There is letter dated 28.04.1993 from B.V. Chinai& Co., clearing and forwarding agents that no import was effected to M/s. Diamount. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tements. The allegation is bald as no substantiation has been given. As laid down by the Hon'ble Supreme Court in the case of Vinod Solanki Vs Union of India [(2008) 16 SCC 537]in such situation retracted statement of the noticee can be relied upon. In the Judgement (Supra) following has been observed in paragraph 23: "23. It is trite law that evidence brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidence, which would lend adequate assurance to the court that it may seek to rely thereupon. We are not oblivious of some decisions of this Court wherein reliance has been placed for supporting such contention but we must also notice that in some of the cases retracted confession has been used as a piece of corroborative evidence and not as the evidence on the basis whereof alone a judgment of conviction and sentence has been recorded." In K.T.M.S Mohamed Vs. Union of India [(1992) 3 SCC 178] the Hon'ble Supreme Court held that merely because statement is retracted, it cannot be regarded as involuntary or unlawfully obtained. In this regard, following observations were made in paragraph 34: "34. ... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged the responsibilities cast upon him by Shri R.K. Verma. Therefore it cannot but be said that Shri Soni, who had knowledge about the scheme for which Shri Verma had chosen him, abetted Shri Verma in successfully getting the aforementioned amount remitted abroad. 18. A question has been raised about whether the bills of entry to demonstrate that the goods had actually been imported against the remittances made, were deposited or not with the bank. The Appellants have claimed that these bills were in fact deposited with the bank but went missing. The Appellants have also maintained that the bills were not available since the prescribed period for its retention was over and in any case the bills had already been audited. However, the bank lodged a FIR with the Police for the missing import documents. The counter allegation is that the theft of the missing import documents was caused so to prevent detection of forgery. The Police failed to bring the case to conclusion. In fact, to raise this issue so as to contend that the bills of entry could have demonstrated that the imports of the goods occurred is to deviate from the correct evaluation of evidence on record. The documents f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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