TaxTMI 
TaxTMI 
2024 (9) TMI 121
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....of Rs. 5,81,57,510/- and Rs. 2,51,00,000/- respectively in contravention of Sections 9(1) (b) and 9 (1) (d) of the Foreign Exchange Regulation Act 1973( FERA). The SCN also charged Mohd. Liakat Ali for receiving payments of Rs. 7,06,03,510/- in contravention of Section 9 (1) (b) of FERA. Ld. Adjudicating Authority imposed penalty of Rs. 50 Lakhs, Rs. 25 Lakhs and Rs. 70 Lakhs on the Appellants Sh. Nand Lal Sarawogi, Sh. Jnan Bikash Banik and Sh. Liakat Ali respectively. 2. From the record it appears that the Tribunal noted on 29.01.2009 the Order dated 25.10.2005 relating to the waiver of pre-deposit of the penalty, had been challenged by a few of the Appellants before the Hon'ble Calcutta High Court. It seems that the three Appellants herein were required to pay 10% of their respective penalties. The Writ Petition was dismissed for non-prosecution in February, 2016. On 22.02.2018 the Appeals were dismissed for non-payment of the pre-deposit of the penalties with respect to the two Appellants Sh. Banik and Sh. Ali, which however were restored on 17.01.2019 after payment of the pre-deposit of 10% of the penalties. On 22.02.2018 the Appeal of Sh. Sarawogi was dismissed for non-pay....
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....ied upon. The statements of the Appellant were taken on different dates. The statements have explained each and every document recovered during the search. Hence the statements which were recorded under Section 40 of FERA have been relied upon. The submissions for the Appellants with respect to the Tribunal Order dated 16.01.2003 and the COFEPOSA Orders are extraneous to the present proceedings. Their conduct can also be made out from the delay which they have caused in effective participation in the present Appeal proceedings. They prayed for dismissal of the Appeals. 6. We have carefully considered the rival submissions and the material on record. On perusal of the impugned Order, we find that many of the pleadings made by the Appellants have been reiterated from the contentions made by them before the Ld. Adjudicating Authority, who has painstakingly disposed of the same. We therefore reproduce the relevant portions of the impugned Order: "40. It is observed from the records that the noticees had a tendency to request for adjournment of the hearings on one pretext or the other without giving any valid or convincing reasons. This attitude of the noticees continued fro....
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.... contention cannot be taken at its face value as it is observed that the search and seizure had taken place in the presence of two independent witnesses as well as in the presence of the noticee Sh. Uttam Saraogi and all the concerned persons had signed the seizure memo as well as the seized documents for identification and confirmation of recovery and seizure. In the circumstances and considering the material on record, I find that there is no necessity to grant the opportunity of cross-examination of witnesses as sought by the noticees. Further, I hold that the search and seizure of documents was conducted in strict compliance of the procedures laid down and as such questioning the same was without any basis and as such, unacceptable. Similarly, the statements of the noticees were recorded by the officers as per the provisions of Section 40 of the FERA, 1973 and were in the nature of elaborations and explanations of the documents which were seized on 30.12.1993 from the business premises of Sh. Uttam Saraogi. Mere retractions of the statements do not affect the admissibility of those statements. Accordingly, I hold that the statements of the noticees, though stood retracted, are ....
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.... in their statements were explanations offered by them in respect of the documents seized by the department on 30.12.1993 in terms of Section 37 of the FERA, 1973 in the presence of independent witnesses as well as in the presence of Sh. Uttam Saraogi. The corroboration of the statements with the seized documents make the allegations baseless. The noticees were provided with copies of the statements as well as seized documents. In the circumstances, the retraction of the statements by the noticees as such do not vitiate the proceedings or the admissibility of the same. 45. The noticees submitted that the illegality of the seizure of the documents and the matter of recording of the statements by use of force, threat, coercion etc. were agitated before the Ld. Chief Metropolitan Magistrate as well as before the Director of Enforcement and these facts were not considered by the Special Director who had issued the SCN. The noticees, during the course of personal hearings also submitted that the same are vital facts to be considered by the Adjudicating Authority. I have carefully examined the said submissions and the relevant records. It is observed that these contentions were ....
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....lso notice that in some of the cases retracted confession has been used as a piece of corroborative evidence and not as the evidence on the basis whereof alone a judgment of conviction and sentence has been recorded." In K.T.M.S Mohamed Vs. Union of India [(1992) 3 SCC 178] the Hon'ble Supreme Court held that merely because statement is retracted, it cannot be regarded as involuntary or unlawfully obtained. In this regard, following observations were made in paragraph 34 : "34. ... But suffice it to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Custom Authorities or the officers of the Enforcement under the relevant provisions of the respective Acts is a sine qua non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion or by any improper means then 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 est....