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RAMESH CHAND AGARWAL V/S DIRECTOR OF ENFORCEMENT, decided on Friday, December 5, 1997.
[ In the Appellate Tribunal For Foreign Exchange New Delhi, APPEAL NO. 144 OF 1997. ] 05/12/1997
Advocate(s) : Jeevan Prakesh . Dr. Shamsuddin .
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  "1999 (104) TAXMAN 468 (FERAB)"  

    Foreign Exchange Regulation Act 1973 - Section 9 -     1. This appeal is directed against the Adjudication Order No. 28/ADJ/97-AD(KS)/154 dated 28-2-1997 under which a penalty of Rs. 10 000 has been imposed on the appellant under section 9(1)(b) of the Foreign Exchange Regulation Act 1973 (?the Act?).2. I have heard the learned counsels of both parties. First of all Shri Jeevan Prakesh the learned counsel for the appellant has argued that even the confessional statement of the appellant though later on retracted does not prove that he has received the alleged money. The appellant has stated on oath that he has no brother-in-law in Dubai. The learned counsel for the respondent has replied that in Panchnama the name of Garg/Ramesh appears. The learned counsel for the appellant has again argued that he has no definite name in the Panchnama either of Garg or of Ramesh. Hence liability cannot be fastened on the appellant. In the light of the above discussion I find that there is no prima facie case against the appellant. Hence I waive the condition of pre-deposit of amount of penalty before hearing the appeal on merit. 3. Simultaneously I hear the appeal on merit also. In short the case of the respondent/Enforcement Directorate is that Shri Dinesh Kumar Goel @ Titu in his statement dated 16-11-1994 had admitted that he received an instruction from abroad to make payment of Rs. 2 50 000 to Shri Ramesh Chand Agarwal whose statement was recorded on 3-5-1994 in which he inter alia deposed that in the first week of November 1994 he had received a telephone call from his brother-in-law from Dubai that he is sending a sum of Rs. 2 50 000. Accordingly an unknown person came to his shop at Bhagirath Palace and enquired about his identity and delivered him the above sum. Shri Ramesh Chand Agarwal also admitted that he had received the above sum on instructions from a person resident of Dubai.4. In short the case of the appellant is that he has received no amount from any body on the instructions of anybody from Dubai. He has no brother-in-law in Dubai or in any country abroad. No steps had been taken to proceed against Akhtar who was said to be in possession of gold biscuits and was available in hotel as identified by Titu. Hence according to the appellant he has been falsely implicated and Shri Akhtar has been allowed to go scot free.5. I have heard both the learned counsels for both the parties at length. The learned counsel for the appellant has argued that the appellant has no- where in his statement uttered that either he received any payment or gave it to anybody. Enforcement Directorate/respondent has mainly based the imposition of penalty on the retracted statement of the alleged contravener Ramesh Chand Agarwal dated 3-5-1995. In his statement also he has stated :?This sum has been received by my brother-in-law at my shop before me.?This statement shows that the appellant has not received the amount but his brother-in-law who is also by co-incidence Ramesh Chand Agarwal has received the payment. Hence the appellant has not made a self- incriminatory statement.6. Perusal of the Seizure Memo Item No. 4 shows that either Garg or Ramesh has received the amount. It is also not definite and accurate incrimination of the appellant. The third evidence against the appellant is of Dinesh Kumar Goel @ Titu who has stated that he has distributed the money to the appellant along with others on the basis of the information he received on telephone from Dubai on the instruction of Ugra. Hence the so-called incriminatory statement of Dinesh Kumar Goel as well as the confessional statement of the appellant are contradictory. No other witness of the Panchnama has been examined by the respondent. The counsel for the respondent has argued that the telephone number of the appellant is the same as in the Seizure Memo. But in the absence of the clear identity of the alleged contravener as to whether he was Ramesh or he was Garg no guilt can be fastened on him beyond reasonable doubt specially in the circumstances when the appellant has stated on oath that neither he nor his brother-in-law has ever been to Dubai or abroad.7. After careful consideration of the evidence on record and hearing both the learned counsels of both the parties I have come to the conclusion that the appellant?s appeal is liable to be allowed and the impugned order dated 28-2-1997 is also liable to be set aside. Accordingly the impugned order dated 28-2-1997 is set aside and appeal is allowed.