ANUP CHATURVEDI Vs. UNION OF INDIA & ORS.

JUDGEMENT

(1.) The petitioner assails a show cause notice, an order in original and order in appeal issued under the provisions of Foreign Exchange Management Act, 1999.

(2.) Learned Advocate for the petitioner submits that, the impugned order of the appellate authority suffers from the breach of the principles of natural justice. The Adjudicating Authority as also the Appellate Authority had proceeded on the basis of so called admission made by the petitioner. The so-called admission was extracted from the petitioner. It has no evidentiary value. The prosecution ought to have established its case by independent evidence. In this case, the prosecution has not done so. The prosecution did not examine the enforcement officer in support of the case for the prosecution. The petitioner was denied a right of cross-examination of the enforcement officer. The prosecution has not identified the person to whom, the petitioner as an importer, had paid for the imports of the goods. Therefore, no case of violation of the provisions of the Act of 1999 has been made out in the show-cause notice. Therefore, the impugned show-cause notice, the order in original as also the appellate authority's order should be quashed. In support of his contentions, learned Advocate for the petitioner relies upon AIR 1977 Madras 23 (M.S.M. Syed Mohammad Bukhari v. The Director of Enforcement, New Delhi and Ors.), 2015 (4) SCC 435 (A. Tajudeen v. Union of India) and 2008 (16) SCC 537 (Vinod Solanki v. Union of India and Anr.). The respondents are represented.

(3.) It appears that, the authorities had received a complaint under Section 16(3) of the Act of 1999 for contravening the provisions of Section 3(b) of the Act, 1999. A show-cause notice was issued on the basis of such complaint after investigation. The show-cause notice is dated April 16, 2003. The petitioner participated in the proceedings emanating out of the show-cause notice. An order in original dated June 20, 2004 was passed. In the order in original, the Adjudicating Authority takes into consideration, the fact that, the goods were imported in the name of the petitioner in India. He takes into consideration the consignment notes issued by the Air India Authorities and the person carrying the goods and other documentary evidences. He finds that, the goods were imported into India by the petitioner. He, however, does find corresponding payment being made by the petitioner to the exporter through regular banking channels. He infers that, the payment was made through the Hawala mechanism. He, therefore, finds that, the petitioner is guilty of violation of Section 3 (b) of the Act, 1999. He proceeds to impose the penalties as required under the Act of 1999. An appeal was carried by the petitioner against the order in original. The Appellate Authority by the impugned order has concurred with the view expressed by the Adjudicating Authority. No new material was placed before the Appellate Authority, by the petitioner to establish that, he has paid for the imports through the regular mechanism. The charge of violation of Section 3 (b) of the Act of 1999, therefore, stands established against the appeal. It is a case that, the confessional statement of the petitioner was the sole basis to invoke the provisions of Section 3 (b) of the Act of 1999. Cogent documentary evidences apart from the confessional statement were considered both the Adjudicating Authority as also by the Appellate Authority. The confessional statement was found to be corroborated by the independent documentary evidence. Considering such corroboration, the Adjudicating Authority and the Appellate Authority returned the finding as noted in the impugned order. As a Writ Court, I am called upon to sit in appeal over the order passed by the Appellate Authority, reappraise the evidence and substitute my wisdom with that expressed by the Adjudicating Authority and the Appellate Authority in the impugned orders.