1992 (2) TMI 209

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.... his Counsel is present though notices of hearing have been sent to them. There is also no request for adjournment. Since the prayer of petitioner Radhe Shyam Agarwal is only for rectification of mistake catalogued in the application, in the light of the prayer, we propose to dispose of the application since we feel that petitioner Radhe Shyam Agarwal would not suffer any prejudice in the order we propose to pass, with reference to the materials on record. 2. Petitioner Radhe Shyam Agarwal has stated in the petition that the finding of the Tribunal that the statement of Manoharlal Jain confirms the purchase of foreign gold by him from Radhe Shyam Agarwal is factually incorrect. Petitioner Manoharlal Jain has not given any such statement ....

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....rrency under law. The Tribunal in disposing of the appeal of Radhe Shyam in order No. 496/88 referred to supra has held as under : "However, as the currency is absolutely confiscated, the personal penalty on the appellant is reduced to Rs. 75,000/- (Rupees Seventy five thousand). The appeal is otherwise rejected". If this finding is allowed to stand, then Manoharlal Jain would not be able to canvass against the confiscability of the currency and the question of confiscability of the currency arises for consideration in the appeal filed by Manoharlal Jain from whose possession the currency was seized. So far as Radhe Shyam is concerned, admittedly even according to the Department, no currency was seized from his possession and therefor....

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....in is not factually correct and is an error apparent on the face of the record. The learned D.R. agreed that the issue of confiscability of the currency would arise directly more in the case of Manoharlal Jain's appeal. (Appeal No. C/265/88) as it was seized from his possession, than in the appeal of Radhe Shyam (Appeal No. C/26/88). Finding of the Tribunal reducing the penalty on Radhe Shyam in the aforesaid order from Rs. 1.00 lakh to Rs. 75,000/- was given because of the absolute confiscation of the currency and this finding would also warrant factual modification in the light of the evidence on record. Therefore, the learned DR stated that in the interests of justice, order of the Tribunal in the case of Radhe Shyam (Appeal No. C/26/88/....