9911796707
TMI Blog2024 (9) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... 5% of the amount of penalty imposed and furnish bank guarantee for the remaining 85% as pre deposit. However, it is on record vide order sheet dated 15.12.2017 that the Hon'ble High Court of Bombay ordered unconditional waiver of pre deposit. 2. Ld. Counsel for the Appellant argued that the principles of natural justice have been violated in as much as cross examination of the Departmental Officers and witnesses was not permitted. He pleaded that the Ld. Adjudicating Authority confiscated the seized foreign currency subsequently through an Addendum. The seized foreign currency was acquired legally by him and his family members before travelling abroad. In any case the Regulations permit retention of foreign currency upto US$ 2000 per passenger and they are four members in the family. He submitted copies of receipts of release of foreign exchange from authorized dealers. 3. Ld. Counsel contended that the Ld. Adjudicating Authority erred in holding from the seized passbook that the Appellant indulged in acquisition abroad of foreign exchange to the extent of US$ 5,95,739 & Chinese RMB 5,78,079.80. He stated that the passbook did not reflect the account details of the Appellant. Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai and transferred the same to China for which he did not give any explanation. Similarly an e-mail reflected that the Appellant made advance deposit of US$ 19,685 to Jean Huang in China, for which he had no explanation. The Appellant failed to give explanation for other e-mails as well. He therefore prayed to dismiss the Appeal. 6. We have considered the rival submissions and the material on record. The Appellant in his statement tendered under Section 37 of FEMA, 1999 stated that he was running a business M/s. Delta Optics as a sole proprietor. He did not deny that he was trading in local and imported sun glasses and optical frames. These were imported in the names of various companies and sold to local wholesalers. He would coordinate the supplies from the overseas through his cousin Shri Feroz Kapadia living in China. 7. For the recovery of foreign currency worth Rs. 2,99,000/- the Appellant explained that he acquired foreign exchange before the visits abroad and so had his father and mother. Ld. Adjudicating Authority did not accept his explanation because he found that the released amounts were too meagre to meet his expenses abroad which were of long duration. Ld. Adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... $ 5,95,738.4 and RMB 5,78,079.8. 9. Subsequently the Appellant produced a certificate dated 07.03.2005 issued by the Shangai Pudong Development Bank, China that the passbook related to the account of an Indian by the name of Ismail Kapadia. The Appellant denied being the beneficiary of the credit in the said bank account. He gave explanation that the passbook was lying with him since he had returned from China on 15.12.2004. 10. Ld. Adjudicating Authority in paragraph 39 of the impugned order observed the following:- "In his statement Shri Vaseem Kapadia has denied the maintenance of this account by him and its operation. However he has admitted that the amounts credited in this bank account correspond to the payments arranged by him for imports from China for which he was transferring money to the representative/contact of Shri "Kapadia" of China. Moreover, the bank passbook of the said A/c was also found in the possession of Shri Vaseem Kapadia, who failed to provide adequate explanation as to how this passbook of the Chinese bank account remained in his possession. The facts as discussed above thus reveal that Shri Vaseem Kapadia was the person arranging the funds, which wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen statement must be rejected brevi manu. At the same time, it is to be noted that merely because a statement is retracted, it cannot be recorded as involuntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise, etc. to establish that such improper means has been adopted. However, even if the maker of the statement fails to establish his allegations of inducement, threat, etc. against the officer who recorded the statement, the authority while acting on the inculpatory statement of the maker is not completely relieved of its obligations in at least subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the authority or any court intending to act upon the inculpatory statement as a voluntary one should apply its mind to the retraction and reject the same in writing. It is only on this principle of law, this Court in several decisions has ruled that even in passing a detention order on the basis of an inculpatory statement of a detenu who has violated the provisions of the FERA or the Customs Act, etc. the detaining authority should consider t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantiate his denial. The recoveries of the e-mails from the personal computer of the Appellant for which he had no explanation go against him in view of the provisions of Section 39 of FEMA, which are reproduced below as follows:- "39. Presumption as to documents in certain cases.- Where any document- (i) is produced or furnished by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law; or ................... and such document is tendered in any proceeding under this Act in evidence against him, or against him and any other person who is proceeded against jointly with him, the court or the Adjudicating Authority, as the case may be, shall- ....................... (c) in a case falling under clause(i), also presume, unless the contrary is proved, the truth of the contents of such document." 14. During the search of the residential premises a deposit slip of an overseas account along with a blank cheque book of HSBC Bank, Hongkong were seized. The seized deposit slip showed a deposit of US$ 100 in the said account. The Appellant deposed in his statement dated 10.02.2005 that he had not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
