Page 171 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] MANAK KALA v. UNION OF INDIA 705

der dated 17-2-2014 passed by the Adjudicating Authority, did not even mention
any violation of provisions of FERA but merely imposed a penalty of `
75,00,000/-. She submitted that the Appellate Authority had examined the provi-
sions of Section 9(1)(b) of FERA, but did not return any finding to the effect that
the said provision was violated. She contended that there was also no evidence
on record to even remotely indicate any such violation.
7. Mr. Mahajan, Learned Counsel who appeared for the respondents
submitted that there was no infirmity with the impugned order.
Reasoning and Conclusion
8. At the outset, it is necessary to observe that although, in the initial
stages, the respondent had raised an objection regarding the maintainability of
the present petition; however, no such contentions or objections challenging the
maintainability of the present petition were advanced at the time of final hearing.
It is, thus, not necessary to examine the same.
9. There is considerable merit in the contention that there is no material
on record, which even remotely establishes that the appellant is guilty of an of-
fence under Section 9(1)(b) of FERA.
10. It is relevant to refer to Section 9(1)(b) of FERA, which is set out be-
low :-
“9. Restrictions on payments. - (1) Save as may be provided in and in
accordance with any general or special exemption from the provisions of
this sub-section which may be granted conditionally or unconditionally by
the Reserve Bank, no person in, or resident in, India shall -
(a) x x x
(b) receive, otherwise than through an authorised dealer, any
payment by order or on behalf of any person resident outside
India.
Explanation. - For the purposes of this clause, where any person in, or resi-
dent in, India receives any payment by order or on behalf of any person res-
ident outside India through any other person (including an authorised
dealer) without a corresponding inward remittance from any place outside
India, then such person shall be deemed to have received such payment
otherwise than through an authorised dealer;”
11. In order to establish the commission of an offence under Section
9(1)(b) of FERA, it would be necessary to establish that the appellant had re-
ceived payments by order or on behalf of any person resident outside India and
through any person without corresponding inward remittance. In the present
case, there is no such evidence or material whatsoever that indicates that the ap-
pellant had received any amount by order or on behalf of any person resident
outside India. No such evidence or material has been placed on record. The orig-
inal order dated 17-2-2014 passed by the Adjudicating Authority does not even
mention the name of the persons from whom the appellant is alleged to have
received any funds.
12. The prosecution’s case is that the appellant had received certain
funds from Sh. Satish Kumar Sharma @ Pappu who, in turn, had received certain
funds and had distributed the same at the instance of one Munna Bhai from
Dubai. In order to establish this offence, it would be necessary for the Enforce-
EXCISE LAW TIMES  1st June 2020  171