2000 (1) TMI 1033

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....isposes of the appeal on merits. 2. The appellant has filed an application seeking condonation of delay. Dr. Shamsuddin objected to the application on the ground that since the appeal has been received in the Board after 91 days and the Board has no jurisdiction to condone the delay. Shri Mahendra Singh, the learned counsel for the appellant submitted that even if the appeal were filed after 91 days the Board has jurisdiction to entertain the appeal under section 52(4). He cited, in support, this Board's Order in [Appeal No. 362 of 1974 dated 13-4-1976.] (V. Valliappa v. Director of Enforcement). However, he pointed out that this appeal was received within 90 days but because of holidays it was diarised after two days. In the circumstances I decided to entertain the application and in view of the explanation given in the application and considering the fact the appellant has come up in appeal after depositing the amount of penalty I decided to condone the delay and proceeded to hear the appeal on merits. 3. The adjudication proceedings in this case had been held against the appellant in pursuance of the Memorandum of Show Cause (SCN) No. T-4/103/M/88, dated 17-11-1988. The al....

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....use he continued to suffer from one ailment or the other, particularly because of his old age. He was staying on India. He submitted that the fact that he continue to hold foreign amounts and even immovable properties outside India shows that he had intention to go back to Malaysia after he had recovered from his illness. 6. Shri Singh advanced another argument in support of the appeal. He submitted that assuming that the appellant had returned to India, the said notification would not apply as he was a Malaysian citizen and he was not permanently residing in India. 7. The argument put-forth by Shri Singh with all the force at his command are ingenious and the legal premises on which they are sought to be built upon are duly supported by Case law. However, I find it difficult to accept the plea advanced by Shri Singh for the reasons discussed hereinafter. 8. It is not disputed that the appellant was a Malaysian citizen of Indian origin when he came to India in September 1981. The appellant has not disputed that he continued to stay in India since then. His Malaysian passport also expired on 13-5-1984. The Enforcement Officer perused his passport and returned the same after ve....

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....r an uncertain period. In terms of the provisions of section 2(p)(iii) such intention has to be gathered from the circumstances indicative of that intention. If a person has to decide to stay in India out of compulsion of his physical health or some other compulsions e.g. childrens' education, it cannot be said that the circumstances are not indicative of his intention. There may be another type of compulsion, for example, where a person is detained under law for considerable period of time and, therefore, has to stay in India. In both the situations the stay in India is by force of circumstances. But in the former case the circumstances would be indicative of an intention to stay in India for an uncertain period. Therefore, for the purpose of section 2(p)(iii) the inquiry has to be directed to the issue whether the circumstances are indicative of the person's intention to stay in India for good and not to the question whether his decision to reside in India was taken by the force of circumstances. 13. The appellant came to India on 22-9-1981. Assuming that he had no intention to stay on in India at that time but when his Malaysian passport expired on 13-5-1984 he did not make a....

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....h distinction and accord exemption to a category to whom it considers expedient to do so. Such categorisation has been made in the said Explanation. In view of the Explanation the appellant shall have to be treated as a person permanently resident in India as he is admittedly a person of Indian origin even though he may claim to be a foreign citizen. 15. In view of the above, in my opinion, the finding that the appellant is guilty of contravention of section 14 read with notification referred to in the impugned order is unassailable and deserves to be maintained. 16. Shri Mahendra Singh also made his submissions in respect of the quantum of the penalty. He submitted that the appellant was not aware of the foreign exchange regulations in India as he was a foreign citizen and he had faithfully and truthfully given all information required of him by the department, without making any attempt to hide anything. He also submitted that there has been no loss of foreign exchange as the appellant has since repatriated all the foreign exchange held abroad. In the circumstances, he pleaded, there was no deliberate act of contravention and the appellant, even if he is held to be guilty o....