TaxTMI 
TaxTMI 
2008 (6) TMI 647
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....nsatory payment in contravention of section 9(1)(b) and 9(1)(d) of FER Act, 1973. The appellant deposited the penalty amount at the time of hearing of appeal, hence this appeal is taken up for final disposal on merits. 3. Heard Shri R.K. Philips, ld. advocate appearing for the appellant and Dr. Shamsuddin, DLA for the respondent, Shri Philips vehemently contended that the appellant had received gift of Rs. 5 lakhs from Anil Kumar, a non-resident through a banker's cheque drawn on his NRE account with City Bank out of love and affection. It is further contended that gift was made through a gift deed dated 14-10-1992 executed by said Anil Kumar. It is also contended that the said Anil Kumar is a family friend of the appellant and treat....
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....g to him the contravention of section 9(1)(b) and 9(1)(d) is clearly established and this appeal is liable to be dismissed for devoid of merits. 5. In the instant case it is admitted position that the appellant had received a cheque issued from NRE account of Anil Kumar a person resident outside India. The appellant has not brought on record any material showing what prompted Anil Kumar to make alleged gift of substantial amount to him. The appellant has not proved the existence of any love and affection rather the very fact that the appellant has never received any gift either before or after the receiving the substantial amount raised certain questions which remain unanswered. The criteria of making alleged gift to the appellant is wit....
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.... sufficiency and weight of the evidence is to be considered to use the words of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. 63 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". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden." (p. 864) 7. The Hon'ble Court further observed in the said case as under "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 unra....
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....fection leading the gift of a high amount to him by an unrelated person residing at distance place. In the above back drop it is difficult to appreciate that the amount in question was received without any consideration. The argument that inspection was not allowed is a bald allegation in view of the specific offer made in the SCN itself. As regards the denial of cross examination it is well settled that the right of cross examination is not inbuilt. The appellant has not shown how he was prejudiced. In this regard reference may be made to the decision of the Hon'ble Court in Transmission Corpn. A.P. Ltd. v. Sri Rama Krishna Rice Mill AIR 2006 SC 1445 : "9. In order to establish that the cross examination is necessary, the cons....