TaxTMI 
TaxTMI 
2009 (11) TMI 1035
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....osit the penalty amount within 30 days from the date of receipt of the said order. It is stated that the appellant has made the pre-deposit in compliance of said order. It is stated that the appellant has made the pre-deposit in compliance of said order of pre-deposit dated 23-7-2009. Presently this appeal is taken up for final disposal on merit. 2-3. Shri Pramender Ojha, advocate appearing for the appellant, vehe-mently contended that appellant and his son received gift cheques issued from NRE accounts of persons resident outside India through banking channels and as such, no inference of contravention of provision of FER Act, 1973 can be drawn either against the appellant or his son. Secondly, it is argued that the amounts mentioned in cheques issued from the NRE accounts are in Indian currency and deposited in Indian banks and, accordingly, the said amounts in Indian currency cannot be termed as foreign exchange. In such a situation, the said transactions are beyond the ambit of provision of FER Act, 1973. Shri Pramender Ojha advocate then contended that NRI donors gifted the amount in question referred in gift cheques out of love and affection and not against any considerati....
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....without any evidence of threat and coercion, is not acceptable. The bald allegations are required to be supported by a little evidence so that burden can be shifted to the opposite side for leading proof otherwise. In this regard reference can be made to K.T.M.S. Mohd. v. Union of India [1992] 3 SCC 178, Hon'ble Supreme Court made following observations:- "We think it is not necessary to recapitulate and recite all the decisions on this legal aspect. But suffice 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 Customs authorities or the officers of 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 that statement must be rejected brevi manu. At the same time, 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 establish that such improper means has been adopted. However, even if the maker of the statement fails....
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....tion) Act, 1991 enjoy full immunity from any enquiry under law of India is erroneous. The remittances as defined in section 2(b) in the said Act means remittances made in foreign exchange by any person resident outside India to persons resident in India. The Act of 1991 only grants immunity against receiving foreign exchange payment but making payment in lieu thereof to or for the credit of non-resident person. Thus, the transaction is not covered by Remittances of Foreign and Investment in Foreign Exchange Bonds (Immunity and Exemption) Act, 1991. Similarly receiving money by order or on behalf of non-resident person is forbidden under section 9(1)(b) or 9(1)(d) and is not covered under the Remittance of Foreign and Investment in Foreign Exchange Bonds (Immunity and Exemption) Act, 1991. 8. It is not always necessary to find proof from documentary or oral evidence when circumstantial evidence is available. In a recent judgment of judgment in Trimukh Maroti Kirkan v. State of Maharashtra 2006 (10) Scale 190, Hon'ble Supreme Court has held the husband guilty of murder despite absence of occular evidence when husband and wife slept together in a room but next morning ....
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....its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. A somewhat similar question was examined by this Court in connection with sections 167 and 178A of the Sea Customs Act in Collector of Customs, Madras v. P. Bhoormull AIR 1974 SC 859 and it will be apt to reproduce paras 30 to 32 of the reports which are as under : It cannot be disputed that in proceedings for imposing penalties under clause (8) of section 167 to which section 178A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainly is a myth, and as Prof. Brett felicitously puts it - "all exactness is a fake".....
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....er, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. The aforesaid principle has been approved and followed in Balram Prasad Agrawal v. State of Bihar AIR 1997 SC 1830 where a married woman had committed suicide on account of ill-treatment meted out to her by her husband and in-laws on account of demand of dowry and being issueless. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar [2000] 8 SCC 382. In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial court convicted the accused under section 364 read with section 34 IPC and sentenced them to 10 years RI. The accused preferred an appe....