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TMI Blog2015 (2) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... baggage of Shri Gayaz Gulam Godil on 25-5-2010 at CSI Airport, Mumbai and also imposed a penalty of Rs. 10.00 lakhs on Shri Mustafa Kantawala @ Kathawala for abetting the illegal export of foreign currency. Aggrieved of the same, the appellants are before us. 2. The Directorate of Revenue Intelligence had intelligence that three persons, namely S/Shri Fayaz Gulam Godil, Mukhtar Gulam Godil and Farhan Shekhani had smuggled to Hong Kong foreign currency concealed in their baggage. On 24-5-2010 these three persons were being deported back from Hong Kong. The said persons were intercepted by the DRI after crossing the Green Channel on their arrival from Hong Kong by Flight No. 9W-76 on 25-5-2010. On examination, it was found that 1150 No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Rauf at Hong Kong. Shri Mustafa Kantawala @ Kathawala also asked him to take one or two of his relatives along with him so that he could carry memory cards while returning to India. Accordingly, he took Shri Mukhtar Gulam Godil and Shri Farhan Shekhani, who were his cousins/brothers and took the tickets for going to Hong Kong carrying the foreign currency to hand over to Shri Rauf. They were not allowed entry into Hong Kong and they were deported by Jet Airways Flight No. 9W-0075 from Hong Kong to Mumbai. They were neither allowed to meet anyone nor were they allowed to go outside the immigration room and during the stay at Hong Kong Airport, their baggages were in their possession only. On arrival, they passed through the Green Channe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were returning from Hong Kong and therefore, the invocation of provisions of Section 113 of the Customs Act, 1962 would not arise at all as it is a case of import of currency and not export of currency and therefore, the impugned order is defective. Secondly, he argues that the statement relied upon by the Revenue with regard to the alleged act of smuggling has been retracted by Shri Fayaz Gulam Godil before the Magistrate on the first available opportunity and therefore, no reliance can be placed on the said statement and the evidentiary value of the said statement is non-existent. The amount of US $ 1,24,100 was actually received by Shri Fayaz Gulam Godil in Hong Kong in the Airport area and he intended to declare the said foreign currenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to be taken out of India illegally was upheld. Similarly, in the case of CC (Air), Chennai v. Samynathan Murugesan - 2009 (247) E.L.T. 21 (Mad.), the Hon'ble Madras High Court upheld the absolute confiscation of gold ornaments attempted to be smuggled into India in violation of Import Control Order, 1955 and the Hon'ble Apex Court in appeal upheld the absolute confiscation. A Larger Bench of this Tribunal in the case of Peringatil Hamza, vide Order No. M/1280/14/CSTB/C-I, dated 23-6-2014 [2014 (306) E.L.T. 332 (Tri.-LB)], held that if the goods are prohibited they can be absolutely confiscated and it is the discretion of the proper officer to allow redemption, in case the circumstances warrant. In the present case the appellant had conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r its equivalent in one calendar year for one or more private visits to any country (Except Nepal and Bhutan) (b) exceeding US $ 25,000 for business travel". Currency seized is in excess of these limits and therefore, the foreign currency seized are prohibited goods in terms of Section 2(33) of the Customs Act which define prohibited goods as "any goods, the import or export of which is subject to any prohibition under this Act or any other law". In the case of prohibited goods, as per Section 125, it is the discretion of the adjudicating authority to allow redemption or to resort to absolute confiscation. Therefore, there is no right of redemption provided in respect of prohibited goods. A Larger Bench of this Tribunal had examined the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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