This Order disposes of the Appeal No. FPA-FE-45/MUM/2020 filed by Shri Devendra N. Desai against the Order No. 01/MUM-CUSM/FEMA/2020-21 dated 09.06.2020 (Impugned Order) passed by the Competent Authority, Commissioner of Customs (Appeals), Mumbai-I. The Competent Authority has upheld the Seizure Order No. 01/2020 dated 02.03.2020 whereby the immovable property in India of the Appellant Shri Devendra N. Desai, to the extent of Rs. 1,77,63,590/- equivalent to AED 914,000 of Foreign Exchange held outside India, was seized under Section 37A (1) of the Foreign Exchange Management Act, 1999 (FEMA).

2. Ld. Counsel for the Appellant submitted that the Appellant had stated that the said Flat was purchased by him through his close family friend/relative Shri Siddharth Kandpile, a Dubai based NRI for helping by way of giving consultation for Shri Kandpile’s construction related business. It was also alleged that the Appellant admitted that his family members namely his wife Smt. Darshana D. Desai and his son Shri. Tejas D. Desai were not aware of the said deal. It is further alleged that AED 7,79,000/- receivable against consultation fee for rendering services to Shri Siddharth Kandpile in his business has been invested for purchasing the said Flat admeasuring 89.08 Sq. Meters in Dubai. It was submitted that the said Flat accrued income of AED 1,35,000/ by way of renting it out for two years which was deposited in the bank account of Shri. Siddharth Kandpile as he had been given Power of Attorney to deal with the rent, maintenance, etc.. It was also the case of the Respondent that the Appellant was in the process of bringing back the amount involving the cost of the said Flat and the rent received from it back to India.

3. Ld. Counsel for the Appellant stated that the Appellant is also the registered owner of an immovable property, i.e. Flat No. C-14, 3rd Floor, Sahil Co-operative. Hsg. Soc. Ltd., 4th Road, Tejpal Scheme, Vile Parle (East), Mumbai 400 057, (hereinafter called Property) having built up area 516 Sq. Ft.. As per the Government registered valuer Shri. V. Karthikeyan of M/s. VK and Associates, the said Property was assessed at the distress sale value of Rs. 1,81,63,000/- vide valuation report dated 25.02.2020. Accordingly, having reasons to believe that the foreign exchange amounting to AED 9,14,000/- (equivalent to Rs. 1,77,63,590/-) was suspected to be held outside India in contravention of Section 4 of FEMA, the Assistant Director, Directorate of Enforcement, Mumbai, in terms of Sub-Section (1) of Section 37A of FEMA, and in terms of G.S.R. 702(E) dated 16.09.2015 and G.S.R. 701(E) dated 16.09.2015, seized the immovable property of the Appellant situated within India, of an equivalent value to the tune of AED 9,14,000/- (equivalent to Rs.1,77,63,590/-) vide Seizure Order No. 01/2020 dated 02.03.2020. It is alleged that the Appellant did not disclose about holding of the above-mentioned Flat outside India. However, the Flat has now been transferred back in the name of Shri Siddharth Kandpile, without any consideration, as well as the foreign exchange has been arranged to be brought back to India.

4. Ld. Counsel for the Appellant stated that the Appellant through his daughter Mrs. Urvi Naik/Desai, remitted USD 2,49,992.50/- (equivalent to Rs. 1,86,96,939.08/ and to AED 9,14,000/-) as "Gift" to the bank account of the Appellant on 05.05.2020. However, the Respondent has contended that there is no link of the amount received to the export proceeds which had accrued to the Appellant for his Consultancy Services. Ld. Counsel submitted that the impugned Order and the Seizure Order are void ab initio and need to be set aside being erroneous and contrary to the settled law that the provision of Section 37A, which came to be introduced as law on 14.05.2015, cannot be applied retrospectively. The said Flat, which is alleged to have been purchased by the Appellant, was purchased on 28.03.2012, which was much prior to th