UNION OF INDIA Vs. A J KINGSLEY FERNANDEZ

JUDGEMENT

(1.) This civil miscellaneous appeal is filed by the Union of India, represented by the Deputy Director of Enforcement, under S. 54 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as 'the Act'). It is against the order of the Appellate Board, dated 31-10-1985, allowing the appeal preferred by the respondent hereinbefore it and thereby setting aside the penalty of Rs. 7,500/- levied by the First Authority, in his order, dated 31-7-1984. The said order, dated 31-7-1984 was passed on the ground that the respondent had contravened S. 9(1)(a) of the Act is having made payment of Rs. 35,000/- on 18-1-1978 to one Justus Thomas. The abovesaid order, setting aside the order of the Appellate Board is on the footing that the said Justus Thomas has not been proved to be a person resident outside India, as mentioned in S. 9(1)(a) of the Act.

(2.) The First Authority has held that he was person resident outside India.

(3.) Learned counsel for the appellant submits that the Appellate Board as grossly erred in coming to the abovesaid conclusion and particularly has not taken into account the definition of the term "person resident outside India" under S. 2(c) of the Act. The said provision says that the person resident outside India means 'a person, who is not a resident in India'. The term 'person resident in India' is defined under S. 2(p) of the Act. Admittedly, the said Justus Thomas is a citizen of India and according to learned counsel for the appellant, S. 2(p)(i)(b) of the Act is the relevant provision applicable in the present case. That provision says that a person in India means a citizen of India, who has at any time, after 25th day of March, 1947 been staying in India, but does not include a citizen who has gone out of India or outside India in either case. For carrying on outside India a business or vocation outside India. So, accordingly, a citizen of India, who stays outside India for carrying on outside India a business or vocation outside India shall only be a person resident outside India. Learned counsel for the appellant submits that the abovesaid Justus Thomas, in the present case, has been proved to be doing business or vocation outside India, viz., Muttrah Muscat.