1. The following order of the Appellate Tribunal for Foreign Exchange is delivered by Shri O.P. Nahar, Chairperson :

2. This is an appeal against adjudication order No.DD/MAS/180-181/92 dated 29.5.1992 passed by Deputy Director, Enforcement Directorate imposing a penalty of Rs. 70000 for contravention of Section 9(3) and Rs. 5000 for contravention of Section 9(1)(b) FER Act on the reasons that (i) appellant paid foreign currency equivalent Rs. 2,82,000 to a person resident of Zeddah as consideration and in lieu of receiving through a local person of a sum of Rs, 1,25,000 and (ii) appellant received Rs. 23,000 when he was in India from a local person by order or on behalf of one Hamza of Saudi Arabia. In this appeal the penalty amount is appropriated from the recovered currency from the appellant, hence, question of pre-deposit of penalty is not available so we proceeded to dispose of this appeal on merits.

3. We have heard Shri K.M. Sureshchandran, Advocate for the - appellant and Shri A.C. Singh, DLA, for respondent. Learned counsel has also filed written submissions which are taken on record.

4. This is an admitted position Indian currency of Rs. 1,50,750 is recovered from the appellant when he was at his temporary residence at Calicut. Thereafter on the same day the appellant made an admissional statement stating that Rs. 1,25,000 was sent by one Abdul Raoof of Saudi Arabia to whom the appellant while employed in Saudi Arabia gave foreign currency equivalent to Rs. 2,82,000, thus, as per the arrangement the money has been received in India. Further it is also admitted that Rs. 23,000 is received by order or on behalf of one Hamza of Saudi Arabia. This admissional statement is retracted by sending a letter after 37 days alleging threat and coercion.

5. Two Show Cause Notices are issued to the appellant asking him to Show Cause while adjudication proceedings should not be held against him for contravention respectively of Section 9(3) and 9(1)(b) FER Act. The appellant replied the Show Cause Notice whereafter adjudication proceedings were held and impugned order is passed.

6. Though appellant's father claimed ownership of the recovered money but he was not examined by Enforcement Directorate. May it be so but it is clearly available in this appeal that retraction of the admissional statement is made after 37 days, hence, the retraction is not on first available opportunity. Secondly alleged threat and coercion are merely bald contentions without any slightest proof thereof. In this situation, the admissional statement though retracted but is acceptable in evidence for holding the appellant guilty. In this regard observations of Hon'ble Supreme Court in K.T.M.S. Mohd. v. Union of India (1992) 3 SCC 178 :

"We think it is not necessary to recapitulate and recite all the decisions on this legal aspect. But suffice to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Customs authorities or the officers of Enforcement under the relevant provisions of the respective Acts is a sine qua non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion or by any improper means that statement must be rejected brevi manu. At the same time, it cannot be recorded as involuntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise, etc. to establish that such improper means has been adopted. However, even if the maker of the statement fails to establish his allegations of inducement, threat etc. against the officer who recorded the statement, the authority while acting on the inculpatory statement of the maker is not completely relieved of his obligations in at least subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the authority or any court intending to act upo