TaxTMI 
TaxTMI 
TaxTMI 
2025 (1) TMI 1795
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..... However, in view of the observations of the Hon'ble Supreme Court in the case of Union of India & Ors. vs. M/s Premier Ltd. & Ors., Civil Appeal No. 3529 of 2008, the Ld. Special Director (Appeals) dismissed the Appeal on 16.09.2019, with direction that the fresh Appeal may be filed before the Appellate Tribunal, if so desired. 2. On perusal of the record, it appears that the Respondent had conducted searches on 06.08.1985 at certain premises in Delhi. On 07.08.1985 further searches were conducted at the premises of the Appellant Company. On the basis of recovery and seizure of documents and statements tendered under the provisions of The Foreign Exchange Regulation Act, 1973 (FERA), a Show Cause Notice dated 13.11.1991 was issued by the Respondent. The Appellant Company has been charged in relation to four Foreign Exchange transactions which had occurred in 1980. These transactions were as follows: • The Appellant Company, M/s Onkar Travels Pvt Ltd., which is not an authorised dealer, acquired foreign exchange amounting to US$ 13,740/- and BPGBP 900/- from an Association of Persons comprising of Shri Didar Singh (deceased), Shri Nanak Singh, Shri Charan Singh, Sh....
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....mption under Section 72, FERA cannot be invoked, since the Respondent failed to proceed against the Appellant Company jointly with Sh. K S Butalia. Thus, there is no independent corroboration regarding the documents recovered from the premises of Sh. K S Butalia. 4. Ld. Counsel for the Appellant argued that Shri Madan Mohan Abbott was only a peon/book-keeper/scribe, and therefore, it was not possible that he could have explained the said entries on the recovered documents. Further, the statements made by Shri Madan Mohan Abbott were only recorded after a period of five years from the date of the alleged Hawala Transactions. Ld. Counsel argued that it was improbable that Shri Madan Mohan Abbott would have a perfect recollection of the alleged transactions after five years. He contended that the voluntary statement of Shri Madan Mohan Abbott could not have been recorded by the Respondent Directorate. For the corroboration of his contention, he relied upon the testimonials of the officials concerned of the Respondent Directorate made before the Ld. Court of Additional Chief Metropolitan Magistrate, Patiala House, New Delhi. 5. Ld. Counsel for the Appellant contended that there w....
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....ate Sh. Didar Singh who was Member of the Association of Persons. He further stated that Sh. Madan Mohan Abbott in his statements dated 06.08.1985 and 07.08.1985 has given detailed explanation of the entries made in the seized notebooks/registers. 8. Ld. Counsel for the Respondent argued that Sh. Madan Mohan Abbott worked as 'Munim' for the Association of Persons for 10 years. The statement of Shri Madan Mohan Abbott provides detailed descriptions of the foreign exchange transactions which form the basis of the impugned order. Further, Shri Madan Mohan Abbott confirmed the entries in the recovered documents, that these were of the transactions in foreign exchange, undertaken by M/s Onkar Travels Private Ltd. in contraventions of the provisions of FERA. Ld. Counsel for the Respondent argued that the statements of Shri Madan Mohan Abbott were only retracted after six/seven days, and not at the earliest instance. Therefore, the retraction was merely an afterthought. 9. Ld. Counsel for the Respondent argued that the Respondent correctly identified the proper entity as M/s Onkar Travels Pvt. Ltd. Ld. Counsel stated that since Shri Harjit Singh was the director of the company at th....
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....inst him, or against him and any other person who is proceeded against jointly with him, the Court or the adjudicating officer, as the case may be, shall- (a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the Court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence; (c) in a case falling under clause (i), also presume, unless the contrary is proved, the truth of the contents of such document." The documents under consideration were seized from the premises of Sh. K S Butalia. It is an admitted fact that Sh. K S Butalia has not been made a Noticee in the Show Cause Notice dated 13.11.1991. The documents which were recovered and seized have been relied upon by t....
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....minal proceedings in CC No.20051/2016 before the Ld. Court of Additional Chief Metropolitan Magistrate, Patiala House, New Delhi could not affix the timing of such statements tendered on the first day 06.08.1985. Moreover, the criminal proceedings require proof beyond reasonable doubt and failure to affix the timings of such statements may be imperative so as to establish the veracity of such statements. However, the proceedings before us require facts to be established on the principles of preponderance of probability. A fact of tendering statements by Sh. Madan Mohan Abbott on two days is on record. We are also not convinced that the statements were not voluntary and not truthful. Sh. Madan Mohan Abbott had worked for over 10 years with the Appellant Company either directly or through Late Sh. Didar Singh having association with the Appellant Company. To question the credibility of the statements made by Sh. Madan Mohan Abbott on the grounds of status is to err. The facts that Sh. Abbott was associated with the Appellant Company for sufficiently long period so as to maintain accounts whether as Clerk, Accountant or Munim is important to draw inference about his awareness and know....
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....t, is for the maker of the statement who alleges inducement, threat, promise etc. to establish that such improper means had been adopted. I do not find that Sh. Madan Mohan Abott and Sh. Charan Singh have been able to establish that their statements had been obtained using improper means, as alleged. In an appeal filed by the party against the orders of the FERA Board (Smt. S.P. Kamala Achi, Appeal No.676 of 1975). The Madras High Court has observed that there is no rule that the Tribunal should not act on retracted statement'. Hon'ble Supreme Court in the case of Surjeet Singh Chhabra Vs. Union of India- 1997(89) ELT646 (S.C.) held that the confessional statement made before the customs officer, though retracted, is binding since the customs officer is not a police officer. In the case of K.I Pavunny Vs. CCE- 1997(90) ELT 241 (SC) it was held that a confessional statement of accused, if found to be voluntary, can form the sole basis for conviction." 15. It is a matter of record that Sh. Abbott in his statements has not only explained in detail the documents recovered and seized but also identified his own hand writing and those of others in which the documents were writ....
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....cted in the criminal proceedings launched under FERA against him for the present set of facts. While his order of conviction is not part of such records, yet the very fact of his conviction cannot be ignored. In view of the attendant circumstances of this case, the evidence in the form of the statements of Sh. Madan Mohan Abbott shall be relevant for the present proceedings. 17. The independent corroboration of the documents recovered and seized has also been questioned. While the invocation of Section 72 of FERA has been rejected by us under the circumstances of the present case, we find that the fact of the recovery of these documents, particularly those from the premises of Sh. K S Butalia, has not been challenged. These documents have been duly explained by Sh. Madan Mohan Abbott, whose statements have already been found to have evidential value as discussed in the preceding paragraphs. The challenge made on the grounds that such documents are inadmissible as evidence in view of the judgment of the Hon'ble Supreme Court in the case of V C Shukla has been dealt with in paragraph 40 of the impugned order. We concur with the observations of the Ld. Adjudicating Authority and th....
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....hat, following the SC decision in V.C. Shukla's case, there can be no doubt that the note-books/registers were 'books', as they were properly bound and were not mere loose sheets. Secondly, these entries were meticulously totaled and balanced. Not only that, corresponding entries were made against the concerned individual's name in ledger form and Sh. Madan Mohan was able to explain each entry and show its corresponding entry in the other book. The accounts were very regularly kept and day-to-day entries were made and transcribed to the ledgers maintained in respect of individual persons. Therefore, there is no doubt that the notebooks and registers were in fact books of account. Since these have been corroborated independently by Madan Mohan, in his statement, I find that they are a detailed account of the day-to-day transactions in foreign exchange dealing of the persons concerned, especially as these have been corroborated by Madan Mohan." 18. The criminal proceedings launched under the prosecution are independent of the Adjudicating proceedings. The burden of proof in a criminal prosecution requires that the case must be proved beyond reasonable doubt. Howeve....