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2019 (8) TMI 134

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....nt, Calicut. Copies of the statements of S/Shri M. Mohammed Musthafa, S/o Mohammed Haji & Pulikuth Mohammed @ Bappu, S/o. Late Kunhammad Haji recorded by the Customs officers, u/s 108 of the Customs Act were also taken over on 1.05.2002 by the Directorate. 2.2. A perusal of the photocopies of the documents taken over by Directorate of Enforcement, Calicut from Customs indicated that Shri Pulikuth Hamzath Abdusalam @ Kunhimon has been engaged in making compensatory payments on large scale. The seized documents inter alia contained e-mail messages and Fax messages sent from UAE to email address Mubashir [email protected] which was reported to be in the name of Abdul Samad P., who is an associate of the said Shri Pulikuth Hamzath Abdusalam. It has been reported by the Customs officers that S/Shri Pulikuth hamzath Abdusalam and Abdul Samad were absconding since the date of search and as such they could not examine them. The said email messages and fax message contain names, address and telephone numbers of various persons against whose names amounts in code are mentioned. 2.3. The statement of Shri M. Mohammed Musthafa, S/o Mohammed Haji, Vembur, Malappuram district, employee of Shri P....

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....t the said person had connection with gold business of Kunhimon; that as result of the search of his residence a chit containing the address of Pookayil Ebrahim, South C.K. Nagar, Chemmad, Telephone- 464866, was seized; that as far as he remembered he had gone to the house of said Ebrahim to make payment as instructed by Shri Kunhimon; that the sale proceeds of gold were distributed like this; and that he used to get remuneration of Rs. 200-300 from Shri Kunhimon for doing this work. 2.5. Shri M. Mohammed Musthafa, S/o Shri Mohammed Haji, Manathodi House, vembur, mariyad P.O. Manjeri, District Malappuram, was examined under Section 37 of FEMA, 1999 read with section 131 of the Income Tax Act on 05.02.2003. He inter alia stated that he worked as driver of Shri Pulikuth Hamzath Abdusalam during 2001. With reference to his statement given before the Superintendent of Customs on 19.08.2001 that Shri Pulikuth Hamzath Abdusalam @ Kunhimon had given him lists and amounts for distribution and to whom all he had distributed the amounts given by Shri Pulikuth Hamzath Abdusalam, he stated Shri Kunhimon was distributing amounts under the instructions of some person in UAE. 2.6. Shri Puliku....

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....ed that the name and address revealed in the seized e-mail messages are regarding the payments made by Kunhimon as per the directions of a person resident outside India (UAE) and also that the statements of certain persons recorded by the Enforcement confirms the receipt of amount by them as shown in the seized documents as per instructions received from abroad. 6. In para 8 of the complaint that the scrutiny of the seized documents at Sheet No. 1/33 to 11/34 (e-mail message) indicated receipt of several payments by the appellant herein during July-Aug 2001 and hence the officers of Enforcement conducted search at the residential premises of the appellant on 23/07/2002 and that nothing was seized. The statement of the appellant was recorded by the officers of the Enforcement Directorate under the provisions of FEMA on 29/04/2003 and that while recording the statement the seized documents pertaining to receipt of money totally amounting to 1,55,60,000/- by Moidu Haji Annara and Moidu Haji M was shown to the appellant, and that he denied having received any such payments from the said Kunhimon. 7. In his statement stated that he came to India on 26/10/2001 and went back to Abu Dhab....

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.... of the appellant on 29/04/2003 did not conduct any investigation thereafter. The show cause notice dt 04/01/2013 was issued after a lapse of almost ten years, that too without even recording a statement from the appellant after the alleged discovery of the alleged discrepancies in the travel details of the appellant. It was the bona fide belief of the appellant that the Enforcement Authorities had dropped further proceedings in the matter. The appellant by way of lapse of time of about ten years had become a mentally ill person the details of which were already produced before this Tribunal while making prayers on pre-deposit of penalty. 13. Secondly, the identity of the person referred as "Moidu Haji Annara‟ is not established by the complainant Asst Director (hereinafter referred to as the complainant) in a legally acceptable manner. Evidently on the basis of search conducted by the Customs Authorities the complainant jumped into conclusion without proper verification and investigation. There is nothing to show that the Enforcement Authorities made any efforts in this regard and had they made an enquiry with the Village Officer, who is the competent authority, they would ....