1984 (4) TMI 310 - AT - Central Excise

Summary

Issues:
1. Confiscation of foreign exchange bank draft under the Customs Act, 1962.
2. Validity of the order of confiscation and penalty imposition.
3. Interpretation of provisions of Sections 113(d) and 113(h) of the Customs Act.
4. Definition of export goods and foreign exchange under the Customs Act and Foreign Exchange Regulation Act.

Analysis:

1. The appellant was found with a bank draft for lb65,000 issued by a London bank, which was considered as foreign exchange. The Department alleged attempted illegal export without declaration. Adjudication proceedings led to confiscation under Sections 113(d) and 113(h) of the Customs Act, with a penalty of Rs. 1 lakh imposed. The appellant challenged the order, arguing the draft was not export goods and no declaration was made.

2. The Tribunal examined the nature of the bank draft and the legality of the confiscation. The draft was marked "a/c payee" and "not negotiable," intended for the appellant to purchase goods for his son in Singapore. The Department's case of under-invoicing manipulation was dismissed. The Tribunal found the draft did not qualify as export goods under the Customs Act, leading to the order's invalidity.

3. Section 113(d) allows confiscation of goods attempted for export against prohibitions. However, the bank draft did not fall under export goods or foreign exchange definitions. The Tribunal noted the appellant had time to deposit the draft in an Indian bank, negating an unlawful export claim. Therefore, confiscation under Section 113(d) was deemed unjustified.

4. Section 113(h) deals with confiscation of dutiable goods without declaration. As no declaration was made for the bank draft, the Tribunal ruled that provisions of Section 113(h) were inapplicable. The order of confiscation under this section was also deemed incorrect, leading to the setting aside of the order and penalty imposition.

5. The Tribunal concluded that the confiscation of the bank draft and the penalty imposition were unwarranted. The order of the Additional Collector was set aside, and the appeal was allowed in favor of the appellant. The Tribunal held that the bank draft was not subject to confiscation under the Customs Act, and the penalty was unjustified.