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2024 (4) TMI 379 - AT - CustomsSmuggling - Absolute confiscation of foreign currency seized from the Appellant u/s 113(d),(e) & (h) of the Customs Act - levy of penalty u/s 114 and equal amount under Section 13(1) of the Foreign Exchange Management Act (FEMA) 1999 - HELD THAT:- Admittedly Appellant was intercepted by the CISF officials outside the customs area. The Appellant had admittedly not approached the Airlines counter. This fact is supported by the no-show status of the ticket of the Appellant on the website of the airline. In the circumstances, the Appellant had not entered the customs area, nor there is any failure on the part of the Appellant to make appropriate declaration as required under Section 77 of the Customs Act. Under these circumstances, it is found that the provisions of Section 113(e) and (h) are not attracted. At best, there is only a case of intention or attempt to export, as the Appellant was approaching the airport with intention to travel outside India, he was also having a valid ticket. The conclusion of the Adjudicating Authority agreed upon, that foreign exchange or currency is prohibited goods and therefore liable for confiscation. However, it is not agreed that it is correct to deny redemption of the same under Section 125 of Customs Act as the discretion is to be exercised having regards to all relevant facts and cannot be arbitrary. Considering the whole factual nature of seizure and mitigatory facts, this confiscation should not have been absolute. An intention to smuggle prohibited goods cannot be equated with attempt to export prohibited goods. There is only venial breach of the provisions of Section 113(d) of the Act. In this view of the matter, the Order of absolute confiscation under Section 113(e) and (h) of the Act is set aside. However, it is held that the foreign currency in question is liable for confiscation under Section 113(d) of the Act, though the Order of absolute confiscation is set aside - it was further held that the seized foreign currency can be redeemed by the Appellant from whose possession it was recovered, on payment of redemption fine of Rs. 10 lakhs. Further, the penalty imposed under Section 114 of the Act is also reduced to Rs. 1 lakh, and penalty under Section 13(1) of FEM Act is set aside. The appeal is allowed in part.
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