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2016 (5) TMI 740

Head Note:
Confiscation of foreign currency and imposition of penalty - Clauses (d), (e) and (i) of Section 113 of the Customs Act, 1962 - Seizure of US dollars - Import of currency as advance payments towards supply of diamonds - absence of requisite permission of Reserve Bank of India - Held that:- the greater significance and important is the absence of any special or general permission as contemplated under Section 8(1) of FERA. No such permission is produced or relied upon. In fact, that is not even the case that Jatin Jhaveri had applied for and got such permission. For the purpose of Section 8(1) of FERA, “acquisition” of foreign exchange must be with general or special permission of the Reserve Bank of India. Even if the matter of ‘bringing into India’ of the currency in question, as submitted by Mr. R.P. Bhatt, learned Senior Advocate, is taken to have been established, though that part of the matter itself is not free from doubt, the question regarding ‘acquisition’ of currency must be independently established in the light of requirements under said Section 8(1). The assessment in that behalf by the Appellate Authority under FERA and the High Court is completely incorrect.

Mr. Bhatt, attempted to rely on Notification No.FERA-81/89-RB dated 09.08.1989 as amended upto 09.03.1999, but the said notification is in relation to Section 13 of FERA and not in relation to Section 8(1) thereof. Secondly, this notification was not adverted or referred to at any stage and in any case does not deal with acquisition as contemplated under Section 8(1) of FERA. Therefore, the orders passed by the Appellate Tribunal, FERA and by the High Court while accepting the view taken by the Special Director are set aside. The order of confiscation is upheld. Since the amount of ₹ 1,83,09,525/- was refunded and credited to the account of Jatin Jhaveri during the pendency of the proceedings subject to his undertaking to return the same with interest, he is directed to refund the amount with interest @ 10% per annum within six weeks from the date of this judgment. - Appeals disposed of

 


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