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TMI Blog2025 (2) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... /FEMA/155/2016-17/CIT(A)-35 dated 26.03.2018 (impugned order) passed by Special Director, (Appeals), Delhi. The prayer of the Union of India is to restore and uphold the Order No. AD/JN/124/2016/GK dated 01.07.2016 passed by Assistant Director, Enforcement Directorate (ED), Jalandhar. 2. The aforementioned Order dated 01.07.2016 passed by Assistant Director imposed penalty of Rs. 25000/- on the Respondent Sh. Ajay Kumar Bhardwaj for contravention of Section 3(c) of FEMA. The aforementioned Order further confiscated to the Central Government, the amount of Rs. 5,75,000 seized from the Respondent on 11.05.2010. 3. Ld. Counsel for the Appellant stated that the aforementioned Order dated 01.07.2016 has been passed on the facts that the offici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that younger sister of his wife Smt. Gurbax Kaur had been residing in USA for the last five years; that she was basically a resident of Vill. Chahal, Distt. Nawanshahar where her husband Shri Hardeep Singh S/o Shri Darshan Singh was residing; that he received a telephone call from Smt. Gurbax Kaur in May, 2010 intimating him that she would send an amount of Rs.5,75,000/- to her husband Shri Hardeep Singh as he required this amount and he did not receive this amount till date. 5. Ld. Counsel for the Appellant pleaded that the Ld. Adjudicating Authority in the Order dated 01.07.2016 duly considered the defence plea made by the Respondent during the course of the Adjudication Proceedings. Ld. Adjudicating Authority has correctly pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to Rs. 5,75,000/- for purchase of a vehicle for which negotiations were already underway. In between Sh. Kuldeep Singh was intercepted by Police and taken to Police Station at Rahon. The Respondent along with his brother-in-law Sh. Harjit Singh went in the car of Sh. Harjit Singh to search for Sh. Kuldeep Singh. The Respondent visited the Police Station where he too was detained. His statement was recorded under that seized money is part of Hawala transaction. On 12.05.2010 he was again harassed, maltreated and humiliated by the ED Officials in the presence of Police at the Police Station. His statement was recorded by the ED Officials on the lines of the statement earlier recorded by the Police. The Respondent retracted from the statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unted for the seized cash has not been accepted by the Ld. Adjudicating Authority. The Cash Book clearly showed an opening balance of cash in hand of Rs. 33,06,073.06/- as on 10.05.2010 which was the source of the seized currency. Ld. Counsel for the Respondent pleaded to dismiss the Appeal. 9. We have considered the rival submissions and the material on record. On perusal of the Adjudication Order dated 01.07.2016, we note that the findings about the occurrence of the contravention of Section 3 (c) of FEMA has been made by the Ld. Adjudicating Authority on the basis of certain observations which need to be examined. Ld. Adjudicating Authority has correctly observed that Section 3 (c) of FEMA does not require the country of the 'reside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.05.2010 in his letter dated 14.05.2010 addressed to the Director of Enforcement, New Delhi. There is nothing on record to show that a retraction which was made within two days of having given the statement was not at the first available opportunity. Moreover, it is also not on record that the retraction has been considered and rejected by the Competent Authority. It is on record that the statement dated 12.05.2010 was made in the Police Station, Rahon. Although, the statement was recorded by the Officers of ED under Section 37 of FEMA, the fact that it was recorded in the presence of Police Officers, who had taken the statement along the same line, its admissibility as voluntary statement is hit. As discussed in the preceding paragraph th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut not holding that the seized amount was drawn from the balance available in the proprietorship firm of the Respondent. 13. On perusal of the impugned order, we find that the Ld. Special Director (Appeals) has held that the statement dated 12.05.2010 was retracted by the Respondent at the first possible opportunity. Moreover, since the purchase of the car could not be completed hence no document relating to the transaction of the purchase of the car could be submitted by the Respondent. Moreover, Respondent had filed the CA certified copy of the Cash Book to explain the source of seized cash. Ld. Special Director (Appeals) has inferred that no proper investigation was conducted. In this regard last two paragraph of the impugned order are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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