Home Case Index All Cases Customs Customs + AT Customs - 2018 (6) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (6) TMI 22 - AT - CustomsForeign exchange quantification to be taken abroad - Buying and selling of Foreign Exchange - invocation of provisions of customs Act justified or not? - appellant engaged in the productions of films - illegal issue of Foreign Exchange - Whether the Foreign Exchange was legally issued/drawn or exported by the noticee under FEMA? - Whether the carrier of foreign exchange violated the provisions of Customs Act? - The defence of appellants is that they were even otherwise permitted to carry such quantity of foreign exchange abroad. Held that:- The provisions of Rule 4 & 5 of Foreign Exchange Management (Export and Import of Currency) Regulations, 2000 puts restriction on drawal of currency only for transaction listed in Schedule II & III. No permission is need for drawal of currency upto $ 25,000/- for the purpose of business visit in terms of S. No. 8 of Schedule III. It is apparent that the currency was issued without following the due diligence and knowingly violating the provisions for the purpose of obtaining business with full knowledge of both buyer and seller of currency. An offence under FEMA does not automatically result in invocation of provisions of customs Act. Thus the Act of buying and selling of foreign exchange in violation of FEMA, 1999, rules, regulation and guidelines issued under FEMA is not by itself sufficient to invoke charges under Customs Act. For charges under Customs Act to survive there has to be shown an active part or abetting in movement across Customs borders in terms of Section 114 of the Customs Act. The rate of the M/s Sohil Maklai Entertainment Pvt. Ltd. and the three carriers who had admittedly carried the currency out of India - defence of M/s Sohil Maklai Entertainment Pvt. Ltd. is that it was merely a procedural violation - Held that:- It is apparent that there was no reason to smuggle the currency out as they were even otherwise legally entitled to purchase the said amount and take out of India for the purpose of shooting abroad - I is apparent that while M/s Sohil Maklai Entertainment Pvt. Ltd. could have legally obtained the foreign exchange and also exported the same for stated purpose it followed shortcuts as advised by Shri Anand Kulkarni resulting in FEMA offence as well as Customs offence. Penalties - Held that:- The rate in illegal export with full knowledge is established in case of all appellants. - it is apparent that though they violated the law but they only saved themselves the procedural hassles. They were even otherwise entitled to carry the currency abroad legally by following due procedures - penalties imposed on appeals are relatively harsh - quantum of redemption fine as well as penalties reduced to Rs. two lakhs each. Redemption fine imposed is reduced to Rs. five lakhs. - Decided partly in favour of assessee.
|