TaxTMI 
TaxTMI 
2024 (10) TMI 397
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.... penalty imposed. Sh RS Gill, then counsel for the Appellant informed the erstwhile Tribunal on 23.07.2015 that compliance has been made to the Order dated 20.04.2015. 3. The Ld. Counsel for the Appellant stated that the allegation against the Appellant has been that he was indulging in illegal sale/purchase of the foreign exchange despite holding full-fledged money changer license in the name and style of M/s Griffins Forex Pvt Ltd. The Respondent Directorate conducted a search on 26.07.2002 at the residential premises of the Appellant under Section 37, FEMA, 1999. The business premises were sealed and kept under police watch. The Appellant was not present during the said search. During the search, the officer of the Respondent Directorate arrived with one Sh. Roop Singh Rajput who the Appellant had not known. During the search, the Respondent Directorate recovered and seized documents from the suitcase lying beside Sh Roop Singh Rajput. The Appellant denied the ownership of the said suitcase and seized documents. The Ld Counsel for the Appellant emphasised that no foreign exchange was recovered from premises of the Appellant, and no incriminating evidence was recovered from prem....
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....ank of India in violation of the provisions of Section 3(a) of FEMA, 1999. 8. The Ld Counsel stated that in the recorded statement of the Appellant under Section 37, FEMA, 1999, the Appellant had admitted that he bought/sold foreign exchange in an unauthorised manner from his residence. In his statement, the Appellant had further admitted that seized documents pertained to the illegal trade of foreign exchange. The Ld Counsel submitted that the seized documents corroborate the statements made by the Appellant as they prove the nature of the unauthorised transactions. The Ld Counsel has further submitted that the handwriting on the seized documents is of the Appellant is corroborated by the report of the handwriting expert that is, the Government Examiner of Questioned Documents. 9. The Ld Counsel submitted that based on the request of the Advocate for the Appellant, the Ld Adjudicating Authority granted permission for cross examination of Sh Naresh M Sodha, the Panch witness, during the adjudication proceedings. However, the Advocate for the Appellant did not request permission to cross examine the second panch witness that is, Ramchandra Khedekar, or the handwriting expert, that....
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.... 03.08.2002, 06.08.2002 and 08.08.2002 were true and were given voluntarily without any threat, duress and coercion. He denied his statements in his reply dated 05.06.2003. 13. It appears from the record that the Appellant was given the opportunity to cross-examine Shri Naresh Sodha one of the Panch witnesses and Shri S. A. Ali, the Assistant Director who investigated the case. The Ld. Adjudicating Authority has made a finding that the seized documents were examined by the Government Examiner of Questioned Documents, who confirmed that the handwriting on the seized documents are of the Appellant. The Ld. Adjudicating Authority has not found credibility in the arguments that since search was conducted at mid night, witnesses were not present throughout the search and one of the witness was not respectable because he lived in Dharavi Dhobi Ghat, the search was illegal. It is worth the while to reiterate the judgement dated 26.04.1985 of the Hon'ble Supreme Court in the case of Partap Singh (Dr.) v. Director of Enforcement (155 ITR 0166 ), wherein it has been held, "It has been often held that the illegality in the method, manner or initiation of a search does not necessarily m....
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....sis whereof alone a judgment of conviction and sentence has been recorded." 15. In K.T.M.S Mohamed v. Union of India [(1992) 3 SCC 178] the Hon'ble Supreme Court held that merely because statement is retracted, it cannot be regarded as involuntary or unlawfully obtained. In this regard, following observations were made in paragraph 34: "34. ... But suffice it to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Custom Authorities or the officers of the Enforcement under the relevant provisions of the respective Acts is a sine qua non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion or by any improper means then statement must be rejected brevimanu. At the same time, it is to be noted that merely because a statement is retracted, it cannot be recorded as involuntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise, etc. to establish that such improper means has been adopted. However, even if the maker of the statement fails to establish his allegations of inducement, th....