IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 MFA.No. 645 of 2003() --------------------- APPL.525/1999 of APPELLATE TRIBUNAL FOR FOREIGN EXCHANGE, TVM .................... APPELLANT(S): RESPONDENT/COMPLAINANT ------------------------------------ THE DEPUTY DIRECTOR, ENFORCEMENT DIRECTORATE, CHENNAI. BY ADV. SRI.P.K.RAMKUMAR ,SPL.P.P. RESPONDENT(S): --------------- SRI. K.A.SHAMSUDEEN KUNNIL, S/O. M.ABOOBACKER, JAMSHEEDA BANGH, THERUVATHU] P.O. THALANGARA, KASARAGOD DISTRICT, KERALA STATE. ADV. K.A.SHAMSUDEEN KUNNIL (PARTY) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. .................................................................... M.F.A. (FERA) No.645 of 2003 .................................................................... Dated this the 17th day of November, 2008. JUDGMENT Ramachandran Nair, J. Appeal is filed against the order of the FERA Appellate Tribunal modifying penalty levied under Section 9(1)(b) and 9(1)(d) of the Foreign Exchange Regulation Act, 1933. On information, the Department searched the residential premises of the respondent. Besides recovering Rs.30,000/- in cash and deposit receipt for Rs.50,000/-, the Department seized certain records which contain names and addresses of persons to whom cash payments were made by the respondent. Those persons when questioned, confirmed receipts of cash from the respondent. Based on the statement furnished by the respondent and the recipients of money from him, Department held that there is violation of Section 9(1)(b) and 9(1)(d) of FERA and consequently penalty was levied on the respondent. In appeal, the Tribunal found that evidence is wanting for the entire transactions and Tribunal treated violation only in the transaction pertaining to 2 Rs.30,000/- i.e. the amount of cash seized from the respondent. 2. Before us, Standing Counsel appearing for the appellant contended that order of the Tribunal is not tenable because Tribunal has not considered the evidence of the recipients who have given statement before the departmental officers confirming that respondent made cash payments to them. We agree with this contention of the counsel because the Tribunal without any basis accepted the contention of the respondent that the statement recorded from him is not voluntary. Further, it is seen that the Tribunal has not considered the relevance of documents seized from the respondent and the confirmatory statement given by recipients of the amount from the respondent whose names and addresses were available with the respondent. We feel this is a case where the Tribunal has not considered the entire evidence and has misunderstood the scope of Section 40 of the Act under which statements voluntarily made can be relied upon in adjudication proceedings. Since the Tribunal has not considered the statement of the respondent along with other evidence such as recovery of slips containing address of the payees and the evidence recorded from such 3 persons who have received payments, we set aside the order of the Tribunal and remand the matter to the Tribunal for fresh hearing and decision. The Tribunal is directed to issue notice to the respondent and dispose of the appeal afresh after considering their grievance and after hearing both sides within a period of four months from the date of receipt of copy of this judgment. Counsel for the appellant will forward copy of this judgment to the Tribunal for compliance. C.N.RAMACHANDRAN NAIR Judge HARUN-UL-RASHID Judge pms