RAMESH KUMAR SONI Vs. ENFORCEMENT DIRECTORATE

JUDGEMENT

(1.) THIS appeal against the order of the Appellate Tribunal for Foreign Exchange ('Tribunal') raises a question identical to one raised in the accompanying Appeal No.20 of 2012 arising from a common order dated 25/1/2008 viz. Whether the Tribunal was justified in directing the appellant to deposit 50 percent of the penalty Rs.35lacs imposed by the Adjudicating Authority for the purposes of hearing the appellant's appeal under the Foreign Exchange Regulation 1973 (' FERA 1973') on merits?

(2.) IN this case the appellant has been imposed penalty of Rs.35lacs on the ground that he was employee of one Ramesh Kumar Verma and at the instance of his employer (appellant in accompanying appeal No. 20/12) declared himself to be a Proprietor of one M/s. Diamont and caused remittances of Foreign Exchange amounting to US Dollar 29,91,100/ - without import of goods on the basis of bogus documents. In the circumstances penalty under Section 64(2) for abetting the contravention of Section 8(3) read with 8(4) and 9 (1)(b) of the FERA Act,1973 was imposed. Before the authorities and even in the appeal memo as filed before the Tribunal the appellant tried to make out a case that he was an independent person who independently carried out the imports for which remittances were made during the period January, 1991 to April, 1991. This submission of his was not believed by the Adjudicating authority as in his statement he had admitted that he was merely an employee of one Ramesh Kumar Verma and was acting on his instructions.

(3.) THEREFORE as the record stands today it does appear that he had abetted and aided Ramesh Kumar Verma in remitting foreign exchange of US Dollar 29,91,100/ - and the same was not challenged during the oral submissions made before the Tribunal. The emphasis before the Tribunal on the part of the appellant appears to have been financial hardship and for that purpose had filed an affidavit contending that he is in no position to deposit the penalty amount and in support thereof contends that he is even not an Income Tax assesee. This is difficult to accept in the light of the appellant's contention that he was an independent person and was carrying on import business on his own and in that regard had remitted and amount of US Dollar 29,91,100/ - during the period January to April 1991 on his own. Therefore the least that was expected of the appellant was to have brought on record the circumstances that have contributed to his penury after being a man of substantial means in the year 1991. No such attempt also appears to have been made by the appellant to explain his dire financial condition before the Tribunal or even before us.