TMI Blog2013 (9) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Commissioner of Customs (2003 (3) TMI 374 - CEGAT, MUMBAI) – order was set aside – appeal decided in favour of assessee. - C/813/12-Mum - A/151/13/SMB/C-IV - Dated:- 11-2-2013 - Ashok Jindal, J. For the Appellant : Shri S Jayakumar, Adv. For the Respondent : Shri B S Meena, Addl. Commissioner (AR) Per: Ashok Jindal: This appeal is filed by the appellant against the impugned order wherein foreign currency of US $10,100/- were absolutely confiscated under Sections 111(d) and 121 of the Customs Act, 1962 read with Section 8(1) and Section 13(1) of FERA, 1973 and a penalty of Rs. 50,000/- was imposed on Shri Hakim Esmail Penwala, Proprietor of the Air Trade International. 2. The facts in brief are that on 26.11.1999 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of pens and other stationary items is that the buyers' representatives used to visit India and conclude the export orders, after physically inspecting the samples kept in the shelf and then place the orders. If the order size is small, they pay the amount for the purchase in forex to the appellant. Upon receipt of the said forex from the customers, the appellant would carry such forex to their bankers and deposit the same along with the copy of the passport of the customer as well as a letter in the appellant's letterhead requesting the bank to accept the deposit against the export order. The bank will also accept the same and shall issue the necessary FIRC/BRC to that extent. 3.1 This standing practice of receipt of foreign currency tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther submitted that the foreign currency amount seized by the Customs was an advance proceeds towards export order received from M/s Modern Boutique vide Sales Contract No. 786/110/094 dated 25.11.1999 which has been confirmed by M/s. Modern Boutique by their subsequent correspondence dated 15.9.32000 and 22.11.2000. It is also pertinent to mention that as per the order the consignment was exported vide invoice dated 5.12.2000 though the amount pertaining to transaction is in the possession of the department. 3.5 He further submitted that the statement recorded on 26.11.1999 was under force and duress and the same has been retracted by a letter dated 08.12.1999 with supporting documents. He further submitted that when the source of forei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chhabra vs Union of India- 1997 (89) ELT 646 (S.C.) wherein it was held that the confessional statement made before the Customs Officer, though retracted, is binding since the customs officer is not a police officer. He also relied on the decision in the case of Devi Dass Garg vs CCE Delhi- I- 2010 (257) ELT 289 (Tri-Del) wherein it was held that the preponderance of probability leads to confiscation of the goods. 4.1 He also relied on the decision in the case of CCE vs Dunkan Agro Industries Ltd. - 2000 (120) ELT 280 (SC) wherein it was held that "confessional statement recorded under Section 108 of the Customs Act, 1962, without complying with Section 164 of the Code of Criminal Procedure is admissible evidence." 4.2 He also relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the foreign currency has been obtained through illicit means, lies on the Revenue. As the Revenue failed to discharge the same, confiscation under Section 111(d) of the Customs Act, is not sustainable. In this case, although the statement was recorded under Section 108 of the Customs Act but the same was retracted through documentary evidence and nothing contrary have been proved by the Revenue that the possession of the foreign currency has been obtained through illicit means, the charge that the foreign currency in the possession of the appellant is the sale proceeds of the smuggled goods is not sustainable in the light of the decision of the Pukhraj Nihalchand Jain (supra). 6.1 I further find in the case of Azizur Rahaman (supra) t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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