Judgment :- (Appeal under Section 35 of the Foreign Exchange Management Act, 1999 against the order in Revision petition No.673 of 2003 dated 9.2.2004 on the file of the Foreign Exchange Regulation Appellate Tribunal, New Delhi against the order No.DD/16-19/BZ/HYB/2003/FEMA Deputy Director of enforcement, Bangalore.) The Enforcement Directorate, Government of India, III Floor, Damayanthi Chambers, Adarshnagar, Hyderabad, had preferred this Civil Miscellaneous Appeal under Section 35 of the Foreign Exchange Management Act, 1999, hereinafter in short referred to as ‘Act’ for the purpose of convenience. 2. In the Civil Miscellaneous Appeal the order impugned is dated 9.2.2004 made in Revision Petition No.673 of 2003 on the file of the Appellate Tribunal for Foreign Exchange, New Delhi, which is said to have been received on 10.4.2004. 3. Section 35 of the Act dealing with Appeal to High Court, reads as hereunder: “Appeal to High Court: - Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.” 4. In Revision Petition No.673 of 2003 on the file of the Appellate Tribunal for Foreign Exchange, 4th Floor, ‘B’ Wing, Janapath Bhawan, New Delhi, it was referred to as appeal against Adjudication Order No.DD/16-19/BZ/HYB/2003-FEMA Deputy Director of Enforcement, Bangalore, dated 13.5.2003. Though the same was numbered as Revision Petition No.673 of 2003, as against the original order of adjudication referred to supra, an appeal was preferred to the Appellate Tribunal and being aggrieved of the order made by the Appellate Tribunal specified above, the present Civil Miscellaneous Appeal is filed. It is needless to say that virtually this is an appeal as against an appellate order made by the Appellate Tribunal and the same to be numbered as Civil Miscellaneous Second Appeal instead of Civil Miscellaneous Appeal as such. It is needless to say that virtually this is an appeal as against an appellate order made by the Appellate Tribunal and the same to be numbered as Civil Miscellaneous Second Appeal instead of Civil Miscellaneous Appeal as such. Be that as it may, as can be seen from the language employed in Section 35 of the Act referred to supra, in view of the fact that it was specified that any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order, the same was numbered as Civil Miscellaneous Appeal, but inasmuch such appeals are being filed as against the orders made by the Appellate Tribunals, hereinafter these Civil Miscellaneous Appeals to be numbered as Civil Miscellaneous Second Appeals. It is also needless to say that from the language employed in Section 35 of the Act referred to above, it is clear that an appeal would lie to this Court on any question of law arising out such order. 5. Sri T. Suryakaran Reddy, learned counsel representing the appellant had taken this Court through the relevant findings recorded by the Adjudicating Authority and also the relevant findings recorded by the Appellate Tribunal and would contend that the Appellate Tribunal had not appreciated the statement of Dinesh Doshi in proper perspective. The counsel also pointed out that the view expressed that the statement is not in relation to the seized amount of Rs.10,29,000/- cannot be sustainable in the facts and circumstances of the case. The counsel also pointed out to the relevant charges, which had been specified by the Adjudicating Authority and also the findings recorded by the Appellate Authority in this regard. The counsel would submit that inasmuch the provisions of Section 35 of the Act being just akin to Section 100 of the Code of Civil Procedure, the same principles may have to be applied and inasmuch as erroneous findings had been recorded in relation to the statements, it would amount to a question of law and hence the order of the Appellate Tribunal is liable to be set aside. The learned counsel also placed strong reliance on the decisions reported in Deva vs. Sajjan Kumar ( 2003 (7) SCC 481 ) and Baratam Seethamma And Others vs. Bora Chandravathi ( 2003 (4) ALD 866 ). 6. Per contra, Sri S. Bhooma Goud, learned counsel representing the 1st respondent had taken this Court through the charges, which had been specified by the Adjudicating Authority, and would submit that in the light of the charges, correct findings had been recorded and in fact there is no specific charge as such in relation to the amount of Rs.10,29,000/- and the charge was in relation to Rs.15,00,000/- and the same had been properly appreciated by the Adjudicating Authority as well as by the Appellate Authority and hence in view of the facts and circumstances and also in the light of the reasons recorded by the Adjudicating Authority and also the Appellate Authority, there is no question of law as such involved in the matter and inasmuch as these are all factual controversies, proper findings had been recorded by the Adjudicating Authority and also the Appellate Authority as well and hence the present Civil Miscellaneous Second Appeal is liable to be dismissed. 7. Heard the learned counsel and perused the order impugned in the present Civil Miscellaneous Second Appeal under Section 35 of the Act and also the order of the Adjudicating Authority, which had been questioned in an appeal against the adjudication order specified above numbered as Revision Petition No.673 of 2003. 8. It is pointed by Sri Suryakaran Reddy that this appeal as against the adjudication order was made under Section 17 of the Act and Section 17 of the Act deals with appeals to Special Director (Appeals) and sub-Section (2) specifically says that any person aggrieved by an order made by the Adjudicating Authority, being an Assistant Director or a Deputy Director of Enforcement, may prefer an appeal to the Special Director (Appeals). In the light of the language, it is needless to say that though it was numbered as Revision Petition, an appeal alone would lie. 9. In the light of the language, it is needless to say that though it was numbered as Revision Petition, an appeal alone would lie. 9. The brief facts of the present case are as hereunder: “On the basis of an intelligence that S/Shri Dinesh Doshi and Ilyas Moosa were indulging in receipt and payments of amounts in India under the instructions of persons residing abroad; that Shri Dinesh Doshi, was to receive a payment of Rs.5,00,000/- from Shri Ilyas Moosa, under instructions of a person resident outside India, the business and residential premises of Shri Dinesh Doshi and the business premises of Shri Ilyas Moosa, were searched under Section 37 of the FEMA’ 1999 r/w section 132 of Income Tax Act, 1961 on 19.2.2001. As a result of search of the business and residential premises of Shri Dinesh Doshi, nothing was seized. Shri Dinesh Doshi was not available during the search. As a result of the search of the business premises of Shri Ilyas Moosa i.e., M/s. Hyderabad Agencies Indian Currency of Rs.10,20,000/- and documents were seized. Further, a survey under Section 37 of FEMA read with Section 131(1A) of the Income Tax Act was conducted at the premises of M/s. Rafiq Bros. At No.5, A.P.H.B. Commercial Complex, M.J. Road, Hyderabad, and certain documents were impounded.” 10. The statement of one Shri Abdul Sattar, Accountant of M/s. Rafiz Brothers, had been recorded on 19.2.2001 under Section 37 of the Act read with Section 131 of the Income Tax Act, 1961 and in the said statement of Shri Abdul Sattar, inter alia, it is stated that the entry of Rs.10,00,000/- in the day book of M/s. Rafiq Brothers at page No.155 was an entry made on the basis of a phone call received from one of the sons of late Rafiq, who told him to make a cash sales entry of Rs.10,00,000/- on that day and he had also stated that no bill or voucher had been received by him for the said entry and that normally he used to make entry in the day book only after receiving bill or voucher and that it was the first time he had made an entry in the said manner without bill or voucher and that M/s. Rafiq Brothers, belonged to Younis and Ilyas. Shri Abdul Sattar, s/o. Moosa appeared on 23.2.2001 in the office of Enforcement Directorate, Hyderabad, and gave a sworn statement, in which he had stated that he was a partner in Hyderabad Agencies, which was started in April, 1997 for dealing in Soaps and Confectionary of Hellos Company of Mumbai; that the said company was closed on 31.03.1999 due to insufficiency of profit, that after closure of the business he handed over the premises to M/s. Rafiq Brothers and permanently left for Nizamabad to look after his family business M/s. Moosa Abdullah Summer, a dealer for M/s. Hidustan Liver Ltd., since 1945 and that Shri Younis Moosa or Ilyas Moosa, the partners of M/s. Rafiq Brothers can only explain about the seized money and documents. Shri Ilyas Moosa appeared before the Assistant Director on 28.2.2001 and gave a sworn statement narrating certain particulars including his full name and other details and stated that since 1993 they were running M/s. Rafiq Brothers doing consignee agency business for Manik Chand Gutka and Pan Masala from shop No.5, APHB Complex, M.J. Road, Hyderabad. Regarding Indian currency of Rs.10,29,000/- seized from M/s. Rafiq Brothers, Shri Ilyas Moosa had stated that the amount represented the cash balance of Rafiq Brothers as on 19.2.2001. When Shrei Ilyas was confronted with the impounded cash book of Rafiq Brothers for the year 2000-01 and also statement dated 19.2.2001 of Shri Abdul Sattar, Accountant of Rafiq Brothers, he had stated that the actual cash sales and entry made by the Accountant was Rs.10,09,000/- and not Rs.10,00,000/- as stated in the statement and that the cash sales on 19.2.2001 upto 3.30 PM were Rs.10,09,000/- and hence he asked Abdullah (s/o. late Rafiq) to intimate the Accountant to pass the entry in the books and that the last cash sales was around 3 PM on that day. A detailed statement of Shri Dinesh B. Doshi also had been recorded. Apart from this statement, the employee of Dinesh Doshi Shri Nandu Sharma also was examined on 14.3.2001. Further, Smt. Askari Sultana was examined and Mohd. Ahmed was also examined on 29.3.2001. 11. The Adjudicating Authority, in the light of the facts, framed the following charges: (i) Shri Dinesh Doshi had received payments totaling to Rs.15,00,000/- by order of Shri G. Rajesh of Dubai, a person resident outside India without the general or special permission of Reserved Bank of India. Ahmed was also examined on 29.3.2001. 11. The Adjudicating Authority, in the light of the facts, framed the following charges: (i) Shri Dinesh Doshi had received payments totaling to Rs.15,00,000/- by order of Shri G. Rajesh of Dubai, a person resident outside India without the general or special permission of Reserved Bank of India. (ii) Shri Ilyas Moosa has received payments totaling to Rs.20,50,000/- by order of Shri Iyas of Dubai, a person resident outside India, without the general or special permission of Reserve Bank of India. (iii) Smt. Askari Sultana has received a payment of Rs.3,00,000/- by order of Shri Syed Azeemuddin of Damman, a person resident outside India, without the general or special permission of Reserve Bank of India. (iv) Shri Modh. Ahmed has received a payment of Rs.80,000/- by order of Shri Modh. Tahir of Qatar, a person resident outside India, without the general or special permission of Reserve Bank of India. A show cause notice dated 10.7.2001 was issued and a reply was filed on 8.8.2001 to the said show cause notice, wherein it was stated as follows: (a) M./s. Rafiq Brothers was a registered partnership firm carrying on business of C & F Agency of Dhariwal Tobacco Products Limited, Hyderbad, for entire Andhra Pradesh dealing in Manikchand Gutkha and Pan Masala. They were on the rolls of Income Tax Department and were being assessed regularly with the Income Tax Officer, Ward-I, Nizamabad, under GIR No.R-308. (b) They were maintaining the regular books of account of required under Section 44AA of the Income Tax Act, 1961 for their business. (c) On 19.2.2001 the officers of Enforcement Directorate, Hyderabad, searched the premises of M/s. Rafiq Brothers and seized Rs.10,29,000/- found in the business premises. (d) They submitted that the cash balance on 19.2.2001 as per the cash book maintained by the dealer was Rs.10,35,677.23 including the sales of Rs.10,09,000/- made on that day before the commencement of the search by the officers. The sales bills etc., were all available and the entries in the cash book were also there when the officers visited the premises. Therefore, the cash seized by Enforcement Officers was nothing but the regular business cash and therefore the question of contravention of the provisions of FEMA did not arise. The sales bills etc., were all available and the entries in the cash book were also there when the officers visited the premises. Therefore, the cash seized by Enforcement Officers was nothing but the regular business cash and therefore the question of contravention of the provisions of FEMA did not arise. (e) They also submitted that so far as the contention that the sales of Rs.10,09,000/- were recorded on a single day, they stated that it was not the only occasion on which the notice made cash sales of that amount on a single day and it was a usual practice of their business. Since they were C & F Agents for the entire Andhra Pradesh and since there was huge demand of the product, they would dispose the same as and when the stock were available in a very short period. They also gave the details of some heavy sales made by them. Certain other additional facts also had been narrated. The Adjudicating Authority gave a personal hearing and ultimately recorded findings and came to the conclusion as specified hereunder: “Regarding Shri Dinesh Doshi, the fact of receipt amounts totaling to Rs.15,00,000/- is established by his own statement as well as by the statement of Shri Ilyas Moosa. As far as the payments are concerned his statement is corroborated by the statement of Smt. Askari Sultana and Shri Mohd. Ahmed. Based on these evidence, I hold Shri Dinesh Doshi guilty for contravening the provisions of Section 3(c) of FEMA, 1999 to the extent of receiving and making payments totaling to Rs.15,00,000/- as mentioned in the show cause notice. Considering the facts and circumstances of the case and pursuant to powers given to me under Section 13(1) of FEMA, 1999, I impose a penalty of Rs.1,50,000/- (Rupees one lakh fifty thousand only) on Shri Dinesh Doshi. Regarding charges against Smt. Askari Sultana and Shri Mohd. Ahmed, they are well established by their own statements as well as the statement of Shrei Dinesh Doshi and also their subsequent assertions at the time of personal hearing. Since they have received amounts only for their own use from their respective relatives, I take a lenient view and impose following penalties on them pursuant to powers given to me under Section 13(1) of FEMA, 1999. 1. Penalty of Rs.15,000/- (Rupees fifteen thousand only) on Smt. Askari Sultana. 2. Since they have received amounts only for their own use from their respective relatives, I take a lenient view and impose following penalties on them pursuant to powers given to me under Section 13(1) of FEMA, 1999. 1. Penalty of Rs.15,000/- (Rupees fifteen thousand only) on Smt. Askari Sultana. 2. Penalty of Rs.5,000/- (Rupees five thousand only) on Shri Mod. Ahmed. The total penalty amount of Rs.1,50,000/- (Rupees one lakh fifty thousand only) imposed on Shri Ilyas Moosa, Rs.1,50,000/- (Rupees one lakh fifty thousand only) imposed on Shri Dinesh Doshi, Rs,15,000/- (Rupees fifteen thousand only) imposed on Smt. Askari Sultana and Rs.5,000/- (Rupees five thousand only) imposed on Shri Mohd. Ahmed, should be deposited in the office of Enforcement Directorate, Bangalore by means of a demand draft drawn in favour of “THE DEPUTY DIRECTOR, Enforcement Directorate payable at Bangalore” with 45 days from the date of receipts of this order.” 12. The Adjudicating Authority had taken into consideration all the statements and had carefully gone into the records of the case and the replies filed by the concerned parties and after discussing all the facts, ultimately recorded certain findings, which are as hereunder: “I have gone through the records of the case. I am unable to accept the contentions of Shri Ilyas Moosa. The statement of Shri Ilyas given before Enforcement Officer has been written in his own hand writing and is corroborated by the statement of Shri Doshi. But Ilyas has admitted in his statement having received only Rs.15,000/- even though Dinesh Doshi in his statement has stated that he was going to receive another Rs.5,50,000/- from Shri Ilyas, in addition to Rs.15,00,000/-, Shri Doshi has not retracted the statement during the proceedings. Therefore, based on the said statements of Shri Doshi and the statement of Shri Ilyas Moosa, I hold Shri Ilyas Moosa guilty of the charge for having received payments amounting to Rs.15,00,000/- as alleged. Regarding the receipt of Rs.5,00,000/- there is no direct evidence against Shri Moosa. Considering the facts and circumstances of the case and pursuant to powers conferred on me under Section 13(1) of FEMA, 1999, I impose on Shri Ilyas Moosa, a penalty of Rs.1,50,000/- (Rupees one lakh fifty thousand only) for the said contravention. Regarding the seized amount of Rs.10,29,000/-, there is no evidence to connect this money with the charge framed under the Act. Regarding the seized amount of Rs.10,29,000/-, there is no evidence to connect this money with the charge framed under the Act. On the contrary, the books of accounts produced by Shri Ilyas Moosa, clearly show there was cash balance of the said amount on that date and these accounts had been submitted to Income Tax Department also. The books of accounts are also supported by sale bills etc., and the cash book. Therefore, I am unable to connect the seized amount with the violation of FEMA, 1999. Consequently I direct that the penalty amount of Rs.1,50,000/- (Rupees one lakh fifty thousand only) be adjusted from the seized amount of Rs.10,29,000/- and the balance amount be released to Shri Ilyas Moosa of M/s. Rafiq Brothers.” Aggrieved by the said order, the Director of Enforcement, New Delhi, preferred an appeal before the Appellate Tribunal, as specified above and the Appellate Tribunal, after briefly referring to the facts of the case observed at para 3 as hereunder: “Dinesh Doshi’s statement dated 2.3.2001 referred to above at best constitute one piece of evidence. There was other evidence adduced by Ilyas Moosa. There is statement of Ilyas Moosa dated 23.2.2001 wherein he stated that the seized amount represented cash balance of Fariq Bros., as on 19.2.2001. On being confronted with the impounded cash book of Rafiq Bros., for the year 2000-01, also statement dated 19.2.2001 of Shri Abdul Sattar, Accountant of Rafiq Bros., Shri Ilyas Moosa stated that the actual cash sales and entry made by the Accountant was Rs.10,09,000/- and not Rs.10,00,000/- as stated in the statement and the cash sales on 19.2.2001 upto 3.30 PM were Rs.10,09,000/- and hence he asked Abdul to let Rafiq intimate the Accountant to pass entries in the books as a last cash sales was around 3 PM on that day. Shri Moosa had also produced books of accounts showing the cash balance of the said amount on that day. These books were supported by sales bills etc. and the cash book and has been found by the Ld. Adjudicating Officer. The Adjudicating Officer has taken a judicious view on consideration of the entirety of the evidence that was before him and no fault can be found with his finding with reference to a part of such evidence through a statement of Dinesh Doshi. and the cash book and has been found by the Ld. Adjudicating Officer. The Adjudicating Officer has taken a judicious view on consideration of the entirety of the evidence that was before him and no fault can be found with his finding with reference to a part of such evidence through a statement of Dinesh Doshi. Thus the very basis on which power of prosecution can be exercised by the Ld. Adjudicating Officer has been absent in the instant case.” In the light of the same, the Appellate Tribunal came to the conclusion that there is no infirmity or illegality in the impugned order and there is no substance in the Revision Petition and the same was dismissed. 13. In the present appeal, the following questions of law had been pointed out, which are as hereunder: 1. Whether the Appellate Board was correct while directing to release the seized amount on the surmises while ignoring the evidence on record which is corroborative and without giving any finding in respect of the said evidence on record? 2. Whether the Appellate Board was right in dismissing the Revision Petition No.673 of 2003 solely on the basis of the finding of the Adjudicating Authority without giving any finding about the other substantial evidence i.e., the statement of Shri Dinesh Doshi? 3. Whether the Appellate Board was correct in ignoring the fact that the co-notices Shri Dinesh Doshi accepted the adjudication order and further based upon the evidence of the said co-noticee, the charge leveled against the respondent herein stands proved? 14. Section 13 of the Act deals with Penalties, which reads as hereunder: “Penalties: (1) If any person contravenes any provision of the Act, or contravenes any Rule, Regulation, Notification, direction or order issued in exercise of the powers under this Act, or contravenes any condition subject to which an authorization is issued by the Reserve Bank, he shall, upon adjudication, be liable to a penalty upto thrice the sum involved in such contravention where such amount is quantifiable, or up to Two Lakhs where the amount is not quantifiable, and where such contravention is a continuing one, further penalty which may extend to rupees five thousand for every day after the first day during which contravention continues. (2) Any Adjudicating Authority adjudging any contravention under sub-Section (1), may, if he thinks fit in addition to any penalty which he may impose for such contravention direct that any currency, security or any other money or property in respect of which the contravention has taken place shall be confiscated to the Central Government and further direct that the foreign exchange holdings, in any, of the persons committing the contravention or any part thereof, shall be brought back into India or shall be retained outside India in accordance with the directions in this behalf.” 15. The main contention which had been advanced by the learned counsel representing the appellant is that the statement made by Dinesh Doshi had not been considered in proper perspective and hence it would amount to erroneous appreciation of evidence and the same being a question of law, this Court can definitely interfere with the findings recorded by both the Appellate Tribunal and also the Adjudicating Authority as well. The relevant portions of the orders of both the Adjudicating Authority as well as the Appellate Tribunal had already been specified above. The charges which had been framed by the Adjudicating Authority also had been mentioned supra. The whole material available on record had been taken into consideration and both the Adjudicating Authority and the Appellate Tribunal, in fact, apart from the other material available on record, considered the statement of Dinesh Doshi also and arrived at the correct conclusion. In the light of the concurrent findings, which had been recorded, this Court is of the considered opinion that these findings are predominantly findings of fact. Even otherwise there is no perversity as such which can be seen from the findings which had been recorded by both the Adjudicating Authority and also the Appellate Tribunal. Hence, in the light of the limitations imposed on this Court in relation to the re-appreciation of evidence and in the light of the language employed in Section 35 of the Act, this Court is not inclined to disturb the order of the Appellate Tribunal. 16. Accordingly, the present Civil Miscellaneous Second Appeal is bound to fail and the same shall stand dismissed. There shall be no order as to costs.