TaxTMI 
TaxTMI 
TaxTMI 
2002 (7) TMI 841
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....consideration and final disposal on merits. 3. Briefly, the facts of the case are that during the period from 26-11-1988 to 6-1-1989, the appellant, a person resident in India, without the general or special permission of the Reserve Bank of India, received various payments totalling Rs. 57 lakhs including the seized Indian currency of Rs. 8.5 lakhs from persons other than authorised dealer in foreign exchange by order or on behalf of one Shri Kareembhai of Zeenath Stores, Sharajah, UAE, a person resident outside India. During the same period, the appellant is said to have made various payments totalling to Rs. 48,50,000 out of the said Rs. 57 lakhs to one Shri Abdul Basith Kadli alias Ali by order or on behalf of Kareembhai of UAE. It is further alleged that the appellant attempted to make a payment of Rs. 8.5 lakhs to Shri Abdul Basith Kadli alias Ali near Sawarkar Baba Pai Petro, Bunder, Mangalore by order of Kareembhai of UAE. An amount of Rs. 8.5 lakhs, Scooter, Gunny bags, newspapers, certain slips were seized and the appellant's statement was recorded. Thereinafter, his residential premises were also searched on 7-1-1989 and certain documents were seized. After completion o....
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.... by the appellant which was in his exclusive knowledge. The figures of Rs. 57 lakhs and Rs. 48.5 lakhs were worked out on the basis of information furnished by him as corroborated by the seized documents. Shri Gadoo further submitted that from the impugned order, it is clear that opportunity of cross examination of witnesses were given to the appellant but he did not avail. Shri Gadoo further submitted that it was open to the appellant to bring forward Ali to controvert the allegations levelled against the appellant by the respondent. Shri Gadoo further submitted that keeping in mind the amount involved, the learned adjudicating officer has imposed very reasonable penalty of Rs. 2.5 lakhs, 1.5 lakhs and Rs. 50,000. Shri Gadoo also submitted that in case written submissions are filed by the appellant's Counsel, he would also file his written reply for which he sought two weeks time after receipt of the written submissions. 6. Shri Javali has filed his written submissions vide his letter dated 18 May, 2002 along with copies of relied on cases. The respondents have, however, not filed their written reply. 7. In his written submissions, Shri Javali has, inter alia, referred to and re....
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.... made the situation for levy on said penalty unwarranted. The appellant, therefore, prayed that penalty should either be set aside or the case may be remanded for de novo adjudication. 8. On a perusal of the SCN, it is seen that the statement of the recipients whose names and addresses figure in the documents seized from the appellant were not among the relied on documents. As such, these could not have been taken into consideration unless copies thereof had been provided to the appellant. The learned adjudicating officer erred in seeking corroboration from such statements while ascertaining the voluntary nature of the appellant's statement. The impugned order stands vitiated on this count and, therefore, cannot be sustained. Shri Gadoo, appearing for the Respondents, submitted that the case be remanded for fresh adjudication. Shri Gadoo stated that even the appellant has asked for such remand. I do not, however, find it just and proper to remand the case having regard to the facts and circumstances of the case. 9. Furthermore, from Annexure 'B' to the SCN, it is seen that the charge levelled against the appellant consists of making unauthorised payments only to Shri Abdul Basith....
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....has stated that the seized amount constitutes the accumulated income from agriculture and the same has been declared by him in the Income-tax returns even prior to the search and seizure. It has been further stated that the relevant Income-tax documents in support of the submission are collectively produced with the written submissions. In fact no such Income-tax documents have been produced along with the written submissions. It is, however, noted that copies of Income-tax returns for the assessment year 1990-91 (previous year onwards for three years) have been annexed to the dispensation application and filed along with the appeal. The said documents do not indicate any income from agriculture. Besides the plea taken by the appellant in his written statement as referred to above has been raised for the first time. In his reply to the SCN as well as written submissions before the adjudicating officer, this plea has not been taken by the appellant. What the appellant has stated therein is that the officers of DRI were not empowered to seize the money and scooter from the appellant and that he did not know Abdul Basith Kodli. He has further denied that Indian currency of Rs. 8.5 lak....