TaxTMI 
TaxTMI 
2008 (7) TMI 1113
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....ng penalties of Rs. 1,00,000 (Rupees one lakh only) each against the appellants Shyam Sunder Sah, S.N. Tambakuwala and Surendra Kumar Sah for contravention of the provisions of Section 8(1) and 8(2) read with 64(2) of Foreign Exchange Regulation Act, 1973 under SCN 26.09.94. 4. In appeal nos. 305/03, 313/03 and 314/03 the appellants have deposited 20% of the penalty amount in compliance of the order dt 19.03.04. In appeal nos. 762/03 to 764/03 the appellants have deposited 30% of the penalty amount in compliance of the order dt.28.01.04. The appellants have complied the pre-deposit order of this Tribunal where presently these appeals are taken up for final disposal on merits. 5. I have heard elaborate arguments from Shri. J.K. Srivastava on behalf of the appellants and Shri. A.C. Singh, DLA, for the respondent and gone through the record carefully. The first Show Cause Notice no. 24-26/94/SCN/DD dt.26.09.94 was issued against the appellant Surendra Kumar Sah and Shyam Sunder Sah for having otherwise acquired Bangladesh Taka equivalent to Rs. 3,90,147 including the seized amount of Rs. 3 lakhs during the period from 24.04.93 to 06.06.93 and for having convert....
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....acquisition of Bangladesh Taka by his maternal uncles from various persons in Jalpaiguri and corresponding payments made by him to different persons in Calcutta. Page 8 of the seized document marked "C" related to exchange rates of Bangladesh Taka into Indian currency. He admitted that during the period from May, 1992 to 09.06.93 he had transacted an amount of Rs. 20-22 lakhs in Indian currency in the aforesaid manner against receipts of B.D. Taka by his said maternal uncle in Jalpaiguri and for doing the above job he was paid by his maternal uncles. 8. It is argued by Ld. Counsel Shri. J.K. Srivastava, the statements of Surendra Kumar Sah and Shyam Sunder Sah were exculpatory where the statement of S.N. Tambakuwala was recorded on 09.06.93 which was retracted by the appellant subsequently alleging that the same was extracted from him under coercion and threat. It is also argued that the charge of abetment has been levelled against S.N. Tambakuwala which has not been proved by the respondent. The ingredientgs of Section 8 (1) and 8 (2) were also not proved against the appellants where they were liable to be exonerated from the charges levelled against them. 9. The appel....
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....ntion of the names and addresses of the persons for whom they were written on the said sheets. However, the argument is not acceptable because in the transactions in question they are shrouded in clocks of secrecy where their true nature is concealed. One cannot expect detailed accounts being maintained in the form of normal account books by the persons conducting such transactions. The seized documents are fully explained by the appellant, S.N. Tambakuwala which are fully corroborated by the attended circumstantial evidence of the case. The ruling relied upon by the Ld. Advocate does not help the appellant in this case. 12. It is argued that the copies of documents relied upon in this case were not supplied to the appellants despite their request but when questioned about the inspection of the documents, Ld, Counsel could not give any reply and expressed his ignorance about the inspection of the documents by the appellants. The appellants Surendra Kumar Sah and Shyam Sunder Sah filed their replies to SCN before the Adjudicating Officer. Surendra Kumar Sah pressed for supplying copy of his statement vide his letter dt 21.06.03 but neither Surendra Kumar Sah nor Shyam Sunder Sah ....
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....ested interest in procuring such delays. The appellant has not been able to prove that the alleged delay of 8 years in issuing Show Cause Notice was intentional and the averment that rights have been prejudiced due to long delays does not stand to reason particularly when no time limit has been specified in the FERA for issuance of the SCN. As regards delay the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision since he is a person legally injured while State is an impersonal machinery working through its officers or servants. In State of Haryana v. Chandra Mani, JT 1996 (3) SC 371 while discussing the issue of delay on the part of the State the Court observed as under : It is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the Community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered proc....
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....tructions of Surendra Kumar Sah and Shyam Sunder Sah where foreign exchange was illegally acquired and converted into Indian currency. These documents also mentioned the exchange rate of Bangladesh Taka into Indian currency on which rate he had made payments in Indian currency in Calcutta to different persons on receipt of Bangladesh Taka by his maternal uncles Surendra Kumar Sah and Shyam Sunder Sah at Jalpaiguri. 18. Though the appellants, Surendra Kumar Sah and Shyam Sunder Sah denied the charges in their statements but there is no explanation as to why their close relative, S.N. Tambakuwala, who worked under their instructions, would falsely implicate them by giving wrong statements particularly when he was in occupation of residence no. 131, Cotton Street, Calcutta, rented to him by his maternal uncles. 19. The statement of S.N. Tambakuwala was recorded in his own handwriting who did not furnish any reply to the SCN before the Adjudicating Officer despite sufficient opportunities given to him. S.N. Tambakuwala admitted having made payment to different persons in Indian currency to the tune of Rs. 22 lakhs and Rs. 85,000 to different persons in Calcutta on ins....
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....f the word abetment to better appreciate the legal position in this regard. The term 'abetment' has not been defined in the FER Act. What would constitute abetment is contained in Section 107 of the Indian Penal Code, which reads thus : 107, Abetment of a thing.-A person abets the doing of a thing, who- First, Instigates any person to do that thing; or Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission lakes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly, Intentionally aids, by any act or illegal omission, the doing of that thing. 22. The observations of Supreme Court about attracting clause 3 of Section 107 of IPC causing abetment by aid in State of Madhya Pradesh v. Mukesh, 2006(10)SCALE346, are worth mentioning here : A person, it is trite, abets by aiding, when by any act done either prior to, or at the time of, the commission of an act, he intends to facilitate and does in fact facilitate, the commission thereof would attract the third clause of Section 107 of the Indian Penal Code. Doing someth....
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....tion or association to the person must be with the actual knowledge or having reason to believe that he is engaged in assisting in any manner an organised crime syndicate. Thus, the offence under Section 3(2) of MCOCA must have a direct nexus with the offence committed by an organised crime syndicate. Such abetment of commission of offence must be by way of accessories before the commission of an offence. An offence may be committed by a public servant by reason of acts of omission and commission which would amount to tampering with the investigation or to help an accused. Such an act would make him an accessory after the commission of the offence. 25. Thus as per statutory scheme, the abettor must be either instigator or conspirator or an intentional helper. Abetment involves active complicity on the part of the abettor which is proved in this case. When the factual background of the instant case is thus analysed, it becomes established that S.N. Tambakuwala abetted other appellants in contravening the provisions of the FERA. S.N. Tambakuwala is admittedly the nephew of the other two appellants Surendra Kumar Sah and Shyam Sunder Sah where the direct nexus between the assistanc....
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..... El Dorado of absolute proof being unattainable, the law accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered-to use the words of Lord Mansfield in Blatch v. Archar [(1774) 1 Cowp 63 at p.65] "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". 32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the per....