Mool Chand Garg, J.

1. This second appeal raises the following questions of law:

(i) Whether the conviction of the appellant could have been based solely on the basis of retracted confession without there being any other corroborating evidence.

(ii) Once the retraction of a confessional statement takes place then who is to prove that the confession recorded was voluntary.

(iii) Whether the revision petition filed in this case was not within limitation.

(iv) Whether the penalty imposed upon the appellant is justified.

2. This appeal has been filed under section 35 of the Foreign Exchange Management Act(hereinafter reffered to as FEMA) which superseeded Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA)assailing the order dated 30.11.2006 passed by the Foreign Exchange Appellate Tribunal holding the appellant guilty under section 9(1) (a) of FERA and imposing upon him a penalty of Rs. 3,00,000/-(Rupees Three Lakhs).

3. Section 9(1)(a) of FER A reads as under:

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) make any payment to or for the credit of any person resident outside India;

4. Briefly stating the facts of the present case are:

(i) That on receiving information that NRE accounts were being misused for deriving benefits under the Income Tax Act an enquiry was initiated by Directorate of Enforcement, which revealed that NRE account of Shri. N.N. Gupta resident of Dubai :q1aintained with American Express Bank Ltd, New Delhi was wrongly used for deriving the aforesaid benefit. The scrutiny of the said account revealed that a cheque of Rs. 5 lacs dated 29.7.1993 was issued in the name of the Appellant from the said account.

(ii) According to the respondent the appellant in his statement recorded under Section 40 of FEMA on 04.01.1995 had stated that the aforesaid cheque was obtained by him at a premium of 12% and that the same had been declared by him as gift. The investigations further revealed that the aforesaid transaction was made only to obtain benefit under Income Tax Act and the transaction was not a gift at all but payment of Rs. 5.60 lacs was made by the appellant in lieu of the NRE cheque for Rs. 5 lacs to the credit of Sh. N.N. Gupta, a Non Resident Indian in contravention of the provisions of section 9 (1) (a) of FERA. However, there is no evidence to this effect & the statement made under Section 40 on 04.01.1995 was retracted immediately vide his letter dated 13.01.1995 addressed to Director of Enforcement.

(iii) A show cause notice was issued to the appellant on 16.7.1996 to show cause as to why adjudication proceedings under Section 51 of FER A be not initiated against him for the said contravention, to which a reply was sent by the appellant wherein he again stated that the confessional statement recorded by the Enforcement Officer was not voluntary but was under duress.

(iv) The relevant portion of the reply dated 24.07.1996 to the •said notice is reproduced hereunder:

"I had reiterated this fact in my submission also that there was no compensatory payment made to or for this benefit of Mr. N.N. Gupta But although the investigating officer was very cordial in his conduct, yet I was however, insisted to make the statement that this payment was made against premium, the legal ,implication of which I could not comprehend till I was explained by my lawyer, I was also told unless such admission was made, my case would not be closed.

I, however, sent my retraction statement immediately refuting any kind of payment to Mr. N.N. Gupta, I, therefore, once again reiterate that! am a small time employee hardly in a position to make both ends meet ,and such compensatory payments were possible only if I had such substantial funds at my disposal which is next to impossible. ' In view o