TaxTMI 
TaxTMI 
2026 (2) TMI 1283
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....,77,776 against the said foreign exchange, which was acquired from Bank of Baroda, Godowlia Branch, Varanasi and remitted abroad. 2. Ld. Counsel for the Appellant informed that the initial Appeal No. D-124/2005 filed against the Impugned Order was dismissed by this Tribunal on 06.10.2008. The Appellant filed a Review Petition No. 25/2011 dated 04.08.2011. Thereafter, this Tribunal vide Order dated 12.09.2013 directed the Appellant to remove the defects of the Appeal which was duly complied and thus, the Appeal bearing No. 45/2013 came to be instituted. Ld. Counsel further informed that the Respondent filed a Review Petition No. 03/2014 along with Application for Condonation of Delay which were dismissed by this Tribunal on 10.12.2015. Ld. Counsel stated that besides the Memorandum of Appeal which was filed on 29.07.2005, the Appellant filed Additional grounds of Appeal on 19.02.2016. Ld. Counsel stated that this Tribunal on 14.11.2024 disposed of the Application for dispensation of the pre- deposit of the penalty amount of Rs. 1,00,00,000/- with directions to the Appellant to pay 10% of the penalty amount i.e. Rs. 10,00,000/- only as pre-deposit within eight weeks of the issuanc....
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....ial evidence collected through any other independence sources cannot be utilised against him. Ld. Counsel also contended that there is no evidence to prove the allegation that the finance was provided to Shri Nand Kishore Verma by the Appellant. In fact, baseless finding has been made in the Impugned Order that the charges against the Appellant had been proved on the basis of undisputable evidence. No motive of the Appellant has been mentioned either in the SCN or in the Impugned Order. Ld. Counsel contended that the Impugned Order is based on surmises and conjectures. It has failed to demonstrate that the Appellant as abettor had either been privy to the commission of the offence or participated by abetment before the offence. Ld. Counsel therefore pleaded to allow the Appeal. 5. Ld. Counsel for the Respondent Directorate stated that vide letter dated 30.04.1990 of the Reserve Bank of India (RBI) information was received by the Respondent Directorate about the default made by M/s Todi Commercial and Shri Nand Kishore Verma @ Manoj Modi that, in spite of remitting US $ 9,77,776 abroad neither any import had been made nor copies of bills of entry had been submitted to the Authori....
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....ormalities of inspection of relied upon documents and taking copies thereof, but except requesting for adjournment time and again, they had not taken any serious step towards completing the proceedings. Personal hearings were conducted on a number of occasions between 09.09.1996 and 10.02.2005, however, the Advocates of the Appellant failed to make use of the hearings. In spite of reminder letter issued on 13.05.2005 the Advocate for the Appellant failed to file written submissions. 7. Ld. Counsel for the Respondent Directorate drew attention to paragraph 29 of the Impugned Order which brings out the modus operandi and the involvement of the Appellant, which is being reproduced below: "29. Examination of the record relied upon in the SCN under consideration which included the remittance details collected from Bank of Baroda, Godowlia Branch, Varanasi clearly revealed that a current account was being maintained in the said bank in the name of M/s Todi Commercial and from this account foreign exchange totalling US $ 977776 was remitted to the account of M/s Matasya Syrgical Tools Company, GPO Box No.11431, Hong Kong during the period 1988. As per the bank records, one Sh.....
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....bmissions and the material on record including the pleadings made in the Appeal, grounds of Appeal, additional grounds of Appeal, the rejoinder and the written submissions made including the final submission dated 06.11.2025 as well as the Impugned Order and the reply of the Respondent Directorate to the Appeal. It is not in dispute that M/s Todi Commercial with a bank account in Bank of Baroda, Godowlia, Varanasi remitted US $ 977776 abroad for the purpose of import, which however, did not occur. M/s Todi Commercial failed to either return the remittance amount or to furnish copies of bills of entry to the AD Bank. The said failure of M/s Todi Commercial is not in question, in view of the reference letter made by RBI to the Respondent Directorate on the basis of the Report submitted by the AD Bank. The said failure has not been denied by any of the noticees to the SCN. In fact, the statements under Section 40 of FERA clearly bring out the admission with regard to the failure. We also find that the import documents of M/s Todi Commercial were being signed by Shri Nand Kishore Verma as Manoj Todi/M Todi as has been corroborated by the documents with the Bank, statements of the Bank ....
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....nod Solanki vs. Union of India [(2008) 16 SCC 537] which has laid down the situations where the retracted statement of the Appellant can be relied upon. In the Judgement (Supra) following has been observed in paragraph 23: "23. It is trite law that evidence brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidence, which would lend adequate assurance to the court that it may seek to rely thereupon. We are not oblivious of some decisions of this Court wherein reliance has been placed for supporting such contention but we must also notice that in some of the cases retracted confession has been used as a piece of corroborative evidence and not as the evidence on the basis whereof alone a judgment of conviction and sentence has been recorded." Further, in K. T. M. S. Mohamed vs. 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 Cour....
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....bank draft of Rs. 43,95,000/-, the Income Tax Department raised demand on Shri Nand Kishore Verma and not on him. We observe that the proceedings under FERA are independent of those under the Income Tax Act, 1961. The investigation conducted under the two Acts are for different purposes and therefore any action taken under either of the two Acts cannot necessarily have implications for the action under the other Act. The Appellant has also raised the issues about lack of certain actions on the part of the Respondent Directorate during the course of its investigations under FERA. The questions that why no hand writing examination was done for the documents written by Shri Rakesh Jain and Shri Sandeep Modi, or why all three bank accounts of M/s Todi Commercial were not comprehensively investigated by the Respondent Directorate have been raised. These questions have been raised for causing apprehensions and doubts about the credibility of the investigations. We are not convinced, in the face of the record placed before us that any further investigation would have in any manner be of significance for the conclusions already drawn in the Impugned Order. 13. The Appellant has pleaded ....
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....presents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act. 14. Certain extracts of relevant paragraphs of the judgement dated 03.06.2020 of the Supreme Court of India in Criminal Appeal No. 403 of 2010 in the case of Somasundaram @ Somu vs. The State Represented by The Deputy Commissioner of Police [MANU/SC/0467/2020: (2020) 7 SCC 722] are reproduced below: "49. Explanation (2) to Section 107 declares that whoever, either prior to or at the time of the commission of the act, does anything in order to facilitate the commission of that act and thereby facilitate its commission, is said to aid the doing of that act. Thus, anything done which facilitates the commission of the criminal act and promotes the commission of the act, would bring the person within the scope of abetment. 52. In Arjun Singh v. State of Himachal Pradesh (AIR 2009 SC 1568), this Court....