Judgment :- ABDUL HADI. J. Having failed before both the authorities below under the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as "the Act"), the person against whom an order for confiscation under section 63 of the Act and an order levying penalty under section 50 of the Act, were passed for contravention of section 9(1)(b) of the Act, has preferred this appeal under section 54 of the Act. As per section 9(1)(b) of the Act, no person in India shall "receive, otherwise than through an authorised dealer, any payment by order or on behalf of any person resident outside India". The concurrent finding arrived at is that the appellant has received otherwise than through an authorised dealer, payment of Rs. 40, 000 so unauthorisedly on behalf of one Cibar of Colombo, a person resident outside India, that the said Cibar took Rs. 10, 000 out of it, that the balance was kept by the appellant, which was seized from him at his residence in India on August 3, 1979. The said balance of Rs. 30, 000 was confiscated by the order of the first authority, the Deputy Director, Enforcement Directorate, Madras, who also levied penalty of Rs. 4, 000. The said order was confirmed by the order of the Foreign Exchange Regulation Appellate Board, Southern Zone, by order dated April 5, 1982, upholding the confiscation, however reducing the penalty from Rs. 4, 000 to Rs. 2, 000. Hence, this appeal. The main argument of learned counsel for the appellant is that the authorities below should have taken note of the circular of the Central Board of Direct Taxes dated August 5, 1971, the appellant being a migrant from Ceylon, and ought to have held that he has not contravened the above said section 9(1)(b). In this connection he also relies on C. Arasakumar v. Union of India [1986] Crl. LJ 647 (Mad) and the fact that special leave petition against it has been dismissed by the Supreme Court, which is noted in C. Arasakumar v. Union of India. Learned counsel for the respondent, on the other hand contends that the said circular or the abovesaid decisions have no application to the present facts. I have considered the rival submissions on the above aspect. Learned counsel for the respondent, on the other hand contends that the said circular or the abovesaid decisions have no application to the present facts. I have considered the rival submissions on the above aspect. I concur with the submissions of learned counsel for the respondent for the following reasons : The said circular issued by the Central Board of Direct Taxes and addressed to all the Commissioners of Income-tax, no doubt deals with migrant income-tax assessees from Ceylon. No doubt the applicability of the said circular to similar proceedings under the Foreign Exchange Regulation Act was considered in the abovesaid C. Arasakumar v. Union of India [1986] Crl. LJ 647 (Mad), and it appears from the said decision that the said circular by one wing of the Central Government, viz., the income-tax wing, could be applied even with reference to a proceeding under the Foreign Exchange Regulation Act in relation to a migrant from Ceylon. (In the present case, the respondent appears to be one such migrant). But, let the material portions of the said circular be first seen ; they are as follows : "In order to avoid inconvenience to persons of Indian origin migrating from Ceylon, in their income-tax assessments in India, the board consider that the cases of bona fide migrants from that country should be dealt with in a sympathetic manner. In their cases, production of direct or documentary evidence in the shape of transfer through banks, hundies, etc., in support of remittance from these countries need not be insisted upon. However, with a view to ensure that unscrupulous persons do not abuse the concessions, the Income-tax Officers should ensure the satisfaction of the following conditions before accepting a claim of remittance from the above mentioned country : (i) The assessee has migrated to India from Ceylon on or after November 1, 1964. (ii) The assessee had sufficient resources in Ceylon to which the remittance could be reasonably attributed.(iii) The assessee had no source of income either in India or any foreign country other than Ceylon, prior to migration and he was not assessed as resident in India either for the assessment year preceding the year in which he migrated or for earlier years. (iv) The assessee has intimated the Income-tax Officer concerned about the sum brought over and the date(s) of its introduction in the books of account within two months of the date of his arrival in India and in the case of persons who have already migrated by October 31, 1971." (emphasis supplied). It is clear from the abovesaid extracted portion that the effect of the said circular is only that insistence of strict evidence is not to be resorted to and that, to that extent only, the "concession" given therein should be applied and that too, inter alia only if the four conditions mentioned therein, as extracted above, are fulfilled. Thus, strictly speaking the circular deals only with the standard of proof required in relation to the assessment that has to be made, concerning the funds transferred from Ceylon by migrants from that country. In other words, in the abovesaid circular, it is not said that those migrants should not be assessed to income-tax at all with reference to the funds transferred by them on their migration from Ceylon. It must be further noted that in the abovesaid C. Arasakumar v. Union of India [1986] Crl. LJ 647 (Mad), there is no confessional statement made by the assessee, as in the present case in relation to the abovesaid contravention of section 9(1)(b) of the Act. The confessional statement in the present case was made by the appellant on August 3, 1979 itself when the abovesaid seizure of Rs. 30, 000 was made. Based on the said statement, coupled with the other factors, the authorities below have come to the conclusion that the appellant has contravened the abovesaid section 9(1)(b).The reasoning of the first authority below in its impugned order in relation to the abovesaid statement dated August 3, 1979, can be gathered from the following passage found in the order of the said authority: "...Jothimani Nadar (appellant) in his statement dated August 3, 1979, inter alia stated that one Cibar of Cibar Confectionery of Colombo and a native of Trichy district, met him at his shop on July 26, 1979, and informed him that at the time of his (Cibar's) departure from Ceylon he made arrangement for a sum of Rs. 10, 000 to be delivered to him (Jothimani Nadar) or to Augustin (son-in-law of Shri Jothimani Nadar) and that he should receive the same, that as informed by him and as arranged by him from Ceylon on July 28, 1979, a person enquired about his name and his son-in-law's name and in the absence of both, the person who called at the shop delivered a sum of Rs. 40, 000 to Shri Dhana Singh, Manager of the shop for handing over to him. He stated that out of Rs. 40, 000 Shri Cibar received Rs. 10, 000 about two days prior to the date of the search and he (Cibar) informed him that he would receive the balance when he leaves for his native place. He stated that the seized amount of Rs. 30, 000 represented the same ... Shri Dhana Singh, manager of Victory Textile Centre was also questioned in this regard. In his statement dated August 3, 1979, he inter alia stated that on July 28, 1979, a person visited their shop and enquired about his uncle Shri Jothimani Nadar and Augustin. He stated that as both of them had gone out for purchases, the person who called at their shop had delivered a packet containing Rs. 40, 000 and asked him to hand over the same to Shri Jothimani Nadar. He added that he handed over the sum of Rs. 40, 000 to Shri Jothimani Nadar when the latter came in the evening. He further stated that this amount was kept in the steel file drawer by his uncle and out of Rs. 40, 000, Shri Cibar of Colombo received Rs. 10, 000 from his uncle. He stated that the balance amount of Rs. 30, 000 was seized by the officers ... Jothimani Nadar sent a petition dated August 20, 1979, in which he inter alia stated that he was carrying on business in Ceylon until 1971 and he came to India as a repatriate ; that his brother Shri Chelliah Nadar had also come to India during 1972 for permanent settlement ; that they have no connection whatsoever with Ceylon after they left Ceylon; that he received the amount on behalf of Cibar ; that Shri Cibar's cousin brother Natesan of Colombo called on him and demanded the sum of Rs. 30, 000 as the money actually belonged to him (Natesan). 30, 000 as the money actually belonged to him (Natesan). He also stated that Shri Natesan had informed him that the said amount represented the sale proceeds of their properties in India ... Jothimani Nadar in his reply dated September 5, 1979, to the show-cause notice denied the charge and retracted his statement given on August 3, 1979. He reiterated that the said amount had not come from Ceylon but represented the sale proceeds of properties belonging to Shri Natesan held in India . . . He (counsel) filed a written statement dated November 9, 1979, signed by Shri Jothimani Nadar. He stated that the version given by his client earlier in the statement and subsequent petition and written reply to the show-cause notice about the ownership of the amount was not correct. He stated that the amount belonged to his client and as there is no possibility of bringing amount from Ceylon through official channel, he was forced to bring the amount through unauthorised channel. He requested that the seized amount should be released to his client."(emphasis supplied).Thus, it is clear that the appellant was taking different stands at different times. In his statement dated August 3, 1979, he conceded that the money in question belongs to the abovesaid Cibar of Ceylon, which fact was also corroborated by the statement made on the same day by the abovesaid Dhana Singh, his manager and nephew. But, in his statement on August 20, 1979, though he admitted once again that he received the above said amount on behalf of the abovesaid Cibar, he sought to represent that the said Cibar's cousin brother Natesan of Colombo demanded the said sum as the money actually belonging to the said Natesan, representing the sale proceeds of Natesan's properties in India. Then, in his statement on November 9, 1979, he took an entirely different stand stating that the abovesaid amount belonged to himself. That is why the abovesaid Board also in its order, rightly says thus: "In fact, the appellant had taken different stands at different stages in the case and it would appear as if he had no consistent case. It would, therefore, be reasonable to hold that the stand taken by him originally in his statement must be true. " Further, the Appellate Authority also rightly points out thus : " It is not disputed that the appellant received the amount of Rs. It would, therefore, be reasonable to hold that the stand taken by him originally in his statement must be true. " Further, the Appellate Authority also rightly points out thus : " It is not disputed that the appellant received the amount of Rs. 40, 000 on behalf of Cibar, that Cibar took Rs. 10, 000 out of it and that the balance was kept by him (appellant). In his petition dated August 20, 1979, claiming return of the amount this is what the appellant had admitted. He had also stated therein that he received and kept the amounts with him at the request of Cibar whom he knew while both of them were in Sri Lanka doing business there. He had further stated therein that he received the amount under the bona fide impression that it was given to him for the purpose of keeping it on behalf of Cibar. The present case that the money belonged to him was not put forward in that petition. The question then is as to why he should have received the amount on behalf of Cibar who was a resident abroad. The very fact of receiving the amount on behalf of Cibar would thus amount to contravention of section 9(1)(b)." In the light of the abovesaid facts in the present case, there is absolutely no scope for the application of C. Arasakumar v. Union of India [1986] Crl. LJ 647 (Mad). Further, it must be noted that there is absolutely no explanation even in the retracted statement as to why the earlier statement of August 3, 1979, was not correct. Therefore, there is no merit in the abovesaid contention of learned counsel for the appellant. Nextly, no doubt, learned counsel for the appellant also sought to argue that even though the penalty order may be retained, the confiscation order must be set aside since the confiscation is not mandatory. There is no merit in this contention also. In the light of what is stated above, there is sufficient reason for the confiscation order passed concurrently by both the authorities below. One other faint submission made by learned counsel for the appellant is that, according to him, in a similar case, the confiscation was not ordered. There is no merit in this contention also. In the light of what is stated above, there is sufficient reason for the confiscation order passed concurrently by both the authorities below. One other faint submission made by learned counsel for the appellant is that, according to him, in a similar case, the confiscation was not ordered. Even assuming that confiscation was not ordered in another case, it cannot be said that confiscation should not be ordered in the present case since each case turns on its own facts. Thus, the Appellate Board also, in its order, has rightly observed in paragraph 7 of its order. The net result is, there is no warrant for interference at all with the orders passed by the authorities below. Accordingly the civil miscellaneous appeal is dismissed with costs. Consequently C. M. P. Nos. 1391 and 3604 of 1984 for stay are also dismissed.