TMI Blog1984 (4) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... by the National Westminster Bank Ltd., London in the name of the appellant......., Shri Tarlok Singh Bajaj. The were detained, since the appellant failed to produce any evidence for the lawful possession/acquisition/ carrying of the said foreign exchange. Statements were recorded from him that day and subsequently, and show cause notices were issued to the appellant and others and adjudication proceedings were held. Thereunder the appellant had been called upon to show cause why the above said bank draft should not be confiscated and why penalty should not be imposed. On the conclusion of the adjudication proceedings the Additional Collector of Customs passed an order on 15-9-1983 whereunder he ordered confiscation of the above bank draft u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. dealing in garments in London. In this appeal we are concerned only with one item recovered from the appellant on 24-8-1981, that is, a bank draft for 65,000/-, issued by the National Westminster Bank Ltd., London on 13-8-1981 in favour of the appellant, Shri Tarlok Singh Bajaj. The draft has been marked a/c payee not negotiable . The case for the appellant is that the draft had been sent to him by his son for purchase of articles on behalf of his son at Singapore from where they were to be transported to London. There appears to have been some investigation on the question whether this explanation could be true or whether this draft represents the money due to the appellant himself under manipulations by way of under-invoicing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property in Section 3(36) of the General Clauses Act. That reasoning does not appear to be correct. Nor would it be foreign exchange, as held by the Additional Collector, in view of the definition of foreign exchange in Section 2(h) of the Foreign Exchange Regulation Act, 1973. Under Section 2(h)(i) so far as drafts are concerned they would be foreign exchange if they are expressed or drawn in Indian currency but payable in any foreign currency. The draft in question is drawn in foreign currency and not in Indian currency. Under Section 2(h)(ii) any instrument payable at the option of the drawee or holder thereof or any other party thereto either in Indian currency or in foreign currency or partly in one and partly in the other would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are in excess of those included in the entry made under the Customs Act or in the case of baggage in the declaration made under Section 77 shall be liable for confiscation. According to the Department, no declaration had been made in this case by the appellant. In that event, the provisions under Section 113(h) would not be attracted, whatever may be the action to which the appellant may be exposed on the basis of failure to make a declaration under the appropriate Act. Therefore, the order of confiscation purporting under Section 113(h) of the Customs Act also does not appear to be correct. 6. In the circumstances, we accept the contention of the learned Counsel for the appellant that the order of confiscation of the bank draft in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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