TaxTMI 
TaxTMI 
1996 (8) TMI 572
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.... 50,000 has been imposed on the appellant for the contravention of section 9(1)(a) of the Act on the allegations contained in SCN II. The appellant was also served with another Show-Cause Notice, viz., SCN III under which he was charged for contravention of the provisions of section 16 but he was exonerated of the charge. 2. Shri Mittal, the learned counsel for the appellant, pleaded, at the outset, for dispensing with the requirement of pre-deposit on the ground that the impugned order is ex facie untenable. He elaborated that as stated by the learned Adjudicating Officer himself the allegation of contravention hinged on the question whether the appellant at the relevant time was a person resident in India. If he was not, all the charges ....
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.... We considered the submissions made by the parties and decided to dispense with the requirement of pre-deposit as we found that the impugned order, for the reasons advanced by Shri Mittal, is prima facie untenable. We, therefore, heard the parties on merits of the appeal. This order disposes of the appeal on merits. 5. Elaborating his point that the learned Adjudicating Officer erred on facts Shri Mittal submitted that what the appellant had deposed in his statement under section 40 was, "the application for collaboration was made approximately in 1983. My intention was to permanently settle in India after all approvals are obtained." Shri Mittal submitted that it is, therefore, clear from the perusal of the appellant's statement....
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....February 1986, he was asserting that he was an NRI as can be seen from his letter dated 26-2-1986 at p. 28 of the paper book, which is addressed to DGTD, Ministry of Industry. Thereafter, within the prescribed period he instructed the foreign bank to remit his funds to India which the foreign bank did on 29-12-1986. Thus, according to Shri Mittal, the appellant fully complied with the requirement of section 14 and the Notification issued thereunder and the question of any contravention as alleged or otherwise does not arise. He contended that the impugned order is totally unsustainable and contrary to the factual evidence on record; it discloses application of mind to assumed facts which are false and non-application of mind to the relevant....
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....appellant would have stayed in India even if his application had not been approved. Dr. Shamsuddin contended that the learned Adjudicating Officer has, therefore, rightly concluded that the appellant was a resident Indian at the relevant time though he has not referred to all the evidence on record to arrive at that finding. He pleaded that the impugned order should be upheld and the appeal rejected. 10. We have carefully considered the arguments elaborately made on behalf of the parties. Dr. Shamsuddin has made the submission that the impugned order should not be set aside merely on the ground that the evidence expressly discussed by the learned Adjudicating Officer does not sustain the finding if he succeeds in showing that the other evi....
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....tion by a person claiming to be an NRI, such as in reply to any interrogation under section 40, would not be sufficient to establish his status as claimed by him. The intention of a person to stay in India for an uncertain period as contemplated in section 2(p)(ii)(c) has to be gathered by actions, conduct and such other circumstances as may show his intention, that is to say, whether he intended to repatriate from abroad for good and settle down in India. The mere fact of an NRI returning to India for the duration for which he stayed in India is not adequate to determine the said intention. Those facts could constitute only the first step towards making an inquiry into the issue. 12. The circumstantial evidence in the present case is the ....