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2023 (8) TMI 622 - CESTAT ALLAHABADAbsolute confiscation or option of redemption against the redemption fine to be provided - Smuggling - import of Foreign Currencies from Nepal - N/N. 09/1996-Cus (NT) dated 22.01.1996 - HELD THAT:- From the perusal of the above it is quite evident that the above notification in general prohibits the importation through Nepal, the goods of third country origin. Foreign Exchange management Act, 1999 (FEMA) is “An Act to consolidate and amend the law relating to foreign exchange with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of foreign exchange market in India.” - there are no merits in the findings recorded by the Commissioner (Appeals) as the possession of foreign currency in India is governed by the provision of the FEMA and the RBI Circulars issued from time to time. Original Authority has referred to the RBI Circular No.45/2015-16[(1)/6(R)] dated 04.02.2016 provides the permissible limit for import of foreign exchange into India and the on the basis of that he has concluded that seized foreign currency is liable for confiscation but needs to be given an option for redemption. The Regulation 6 and RBI Circular do permit the importation of the Foreign Currency, the said importation is subject to restrictions to the extent that the appellant was required to make declaration of the Currency which he carries if the same is in excess of US$ 5000/- or equivalent. Appellant has failed to make any such declaration, and hence these currencies have been imported in contravention of the provisions of Regulation 6 read with RBI Circular and have to be held confiscable under Section 111 (d) holding the same to be prohibited - in respect of the currency which is above the value of US $ 5,000/- or equivalent needs to be confiscated by the Authorities. As importation of such currencies has been made without any declaration to the Customs or any authority the same will be prohibited and would be liable for absolute confiscation under section 111(d) of Customs Act. The currencies which are in total violation of the RBI Circular should be absolutely confiscated whereas which falls within the permissible limits as per the RBI Circular be allowed on payment of redemption fine. Appellant have already paid redemption fine of Rs.1.5 lakhs. Accordingly, the foreign currency up to the total value of US $ 5,000 allowed to be redeemed to the appellant against the above redemption fine. The remaining seized foreign currency is ordered to be absolutely confiscated. There is no serious challenge by either side to the quantum of penalty imposed on the appellant for his act of omission and commission leading to confiscation of foreign currency. Though the penalty imposed by the original authority to be low - appeal allowed in part.
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