TaxTMI 
TaxTMI 
2013 (10) TMI 1596
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....is a remanded matter from the Hon'ble Calcutta High Court, vide W.P.No.498 of 2007 decided on 24.02.2010, titled as Raj Kumar Damani, v. Union of India. Today, the case is put up before the Bench for the first time by the Registry along with their reports dated 06.08.2013, i.e. the report of the Court Clerk & the Registrar, ATFE after its remand from the Hon'ble Calcutta High Court. The two regular Members in the Tribunal, ATFE have joined in the month of July, 2013, one on 09.07.2013 & the other on 23.07.2013. The Registrar in his report submitted that since no regular Bench was available at the relevant time, therefore after considering the urgency of the matter, the hearing notice was issued for 06.08.2013 by him. Notice dated 20.06.2013 was sent to the appellant and his Counsel by the Registry on 26.06.2013 and 17.07.2013 respectively. It is also perused that vide speed post letter dated 11.07.2013, received in the Registry on 16.07.2013, Sh. Santanu Dutta, Advocate, 28A/lD Jheel Road, Kolkata submitted that he is not the Counsel of Shri Raj Kumar Damani as he does not know him & so, his name not to be treated as Counsel of Shri Raj Kumar Damani & it be treated as cance....
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.... has communicated the copy of the order dated 24.02.2010 to this Tribunal on 12.03.2012 after two years from the date of the passing of this order by the Hon'ble High Court. The same was received in the registry on 14.03.2012. it is further submitted that, no communication either from the appellant or from his advocate ever been received in the registry in this regard. Since the captioned matter was not in the regular listing and the same was already disposed off on 19.03.2007, therefore, the file could not be traced out. This Tribunal is facing acute shortage of staff since long back. Only one clerk and one daily wages peon are available in the registry. As soon as the file is located, the same was placed before me on 20.06.2013. Since no regular Bench was available at the relevant time, therefore, after considering the urgency of the matter, the hearing notice for 06.08.2013 was issued. So far as the Enforcement Directorate letter dated 11.06.2013, which is mentioned in the note sheet submitted by the clerk, is concerned, it is stated that there is a typical error in writing the date by the clerk. The said date may be read as 14.03.2012 instead of 11.06.2013. The said dat....
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....ment Directorate. If no regular Bench was available at the relevant time as stated by the Registrar, then it was the duty of the Registry as well as the Enforcement Directorate to apprise this situation to the Hon'ble Calcutta High Court. Hence, fresh notice be issued again to the appellant and his Counsels, names mentioned (supra) for 05.09.2013 and if the appellant does not appear then the remanded matter will be decided on merits. In the interest of justice, reasonable opportunity is given to the appellant as the rule of prudence says that both sides should be heard before a decision is arrived at on the basis of the maxim "audi alteram partem". Registry is directed to make immediate compliance of the order of the Tribunal. Parties be informed accordingly. Copy of this order be sent to Hon'ble Calcutta High Court through Registrar for information. Sd/- (DR. H K MUDGIL) ACTING CHAIRPERSON Dated: 06.08.2013 The next interim order of the Tribunal, dated 5.9.2013 speaks volumes as under:- Single Bench (Time Bound Case) Dated : 5.9.2013 Appeal No.(s) : 204/2001 Appellant(s) : Shri Raj Kumar Damani Ms. Smriti Pradhan, Legal Consultant appeared on behalf....
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....t was on record that the appellant no. 1 alleged that the statements, which the Enforcement Directorate used against him, were obtained by practicing duress, torture and by offering inducement. It is also admitted that these statements were withdrawn. It is equally true that statements, even if withdrawn can be used in these proceedings. But, the Tribunal has not exercised the jurisdiction properly. It was to decide whether the evidence sought to be used against the appellant no. 1/writ petitioner was voluntary. It is not the other way round. When an objection is made that a statement is obtained unfairly, it is for the Tribunal to first decide whether the statement was voluntary and this principle of law is quite settled and well-known now. The Tribunal cannot say that the onus was on a person making the statement to show that there was duress, torture or inducement. This is exactly what the Tribunal has done by saying there is nothing on record from which it can be gathered that inducement, torture, duress etc. have been practised upon the witnesses by the officials of the Enforcement Directorate. Further with regard to admission of statements that were subsequently withdrawn, ....
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....tion from Reserve Bank of India and out of the said amounts, he made total payments amounting to Rs. 16,04,500/- during the said period to various persons in the above manner and the seized amount of-Rs. 4,58,350/- recovered and seized by the Enforcement Officers during the course of search from the possession of Shri Raj Kumar Damani, was the balance out of the said amounts so received. It was further revealed that the said amount would have been distributed to various persons in the above manner if the same had not been seized by the Directorate. Two Memorandum were issued, where under Memorandum No.C-110/97/DD/DCP dated 21.11.97 and its corrigendum dated 5.12.97 Shri Raj Kumar Damani @ Raju Damani was charged for having received a total sum of Rs. 21,62,850/- from Shri Pranab Kr. Seal @ Shri Khokan Seal, during aforesaid period and out of the said amount he had made payments of Rs. 16,04,500/- to different persons in India by order or on behalf of Shri Narayan Saha of Singapore both without any general or special exemption granted by the Reserve Bank of India for contravention of the provisions of section 9(l)(d). Memorandum Nos.C-59-60/99/SCN/DD dated 7.7.99 was issued against ....
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....rate each other and establish beyond any doubt that he has been indulging in receiving and making payments on the directions of Sri Narayan Saha, residing in Singapore which was further corroborated by the evidence of his two employees, the seized documentary evidence, the recovery of substantial amount of money as well as attendant circumstances of the case. Though, Shri Raj Kumar Damani retracted his statement in his letter dated 24.5.1997 addressed to the Director of Enforcement after giving his fresh statement. Therefore, much importance cannot be given to the retraction petition, sent on 24.5.1997 because the appellant in his retraction statement has made only vague allegations without any corroborative evidence. He has not given any explanation regarding the possession of huge amount, seized from him. He also did not offer any explanation from the documents seized from him, apart from the one which he made in his statement. Hence, the details given by the appellant in these 3 statements are true and voluntary because these statements were not given on a single date but, were spread over to a period of 20 days. Therefore, there was no question of exercising any pressure or thr....
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.... giving his fresh statement. Much importance may not be given to the retraction petition, sent on 24.5-1997 because the appellant in his retracted statement has made only vague allegations without any corroborative evidence. The appellant has not given any explanation regarding the possession of huge amount seized from him. He also did not offer any explanation form the documents seized from him, apart from the one which he made in his statement. Therefore, in the absence of any contrary evidence adduced by him, I am constrained to accept the various details given by him in these 3 statements as true and voluntary because these statements were not given on a single date, but were spread over to a period of 20 days. Therefore, there was no question of exercising any pressure or threat on him to obtain these statements. Further, these statements are well-corroborated by the documents seized. Shri Raj Kumar Damani did not file any reply to the notice and at the time of personal hearing before the Adjudicating Authority, he urged through his Counsel that he has been falsely implicated and nothing was seized from him and the charges have not been proved. This contention is not acceptabl....