TMI Blog2015 (2) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 issue at length in Peringatil Hamza case (2014 (8) TMI 247 - CESTAT MUMBAI (LB)) and after examining the various provisions of the Foreign Management Act and Rules made thereunder and the decisions of the Hon’ble Apex Court in the case of Sheikh Mohd. Omer v. CC, Calcutta & Others - [1970 (9) TMI 36 - SUPREME COURT OF INDIA] came to the conclusion that in the case of prohibited goods, the same can be absolutely confiscated and it is the discretion of the proper officer to allow redemption on payment of fine. It is an admitted position that the currency was illegally exported from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denomination were concealed in shirts of Fayaz Gulam Godil. On personal search of Shri Fayaz Gulam Godil he was found carrying US $ 3100 and the other two persons were found to carry US $ 3000 each. Therefore, the currency amounting to US $ 1,24,100 and the packages/articles used for concealing the currency were seized by the DRI under Panchnama proceedings. In the statements recorded from Shri Fayaz Gulam Godil, he submitted that the foreign currency were given to him as per the instructions of Shri Mustafa Kantawala @ Kathawala. He had gone to Hong Kong on 22-5-2010 but did not declare the foreign currency before the Customs authorities. The foreign currency of US $ 3000 each recovered from other two passengers, namely, Shri Mukhtar Gulam Godil and Farhan Shekhani were also given to Shri Fayaz Gulam Godil by one person on 22-5-2010 with the instructions that these currency should be handed over to one Shri Rauf on reaching Hong Kong. These persons were denied entry into Hong Kong and were deported back and on return they were intercepted after these three persons passed through Green Channel without declaration of any foreign currency. In his statement, dated 25-5-2010 and 24-6- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Mustafa Kantawala @ Kathawala. 3. The learned Counsel for the appellants submit that the currency was recovered when the passengers 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 currency at the time of arrival in India, but due to the nightmare of being deported back, he failed to declare the currency before the Customs authorities. Reliance is placed on the decision of the Hon ble Bombay High Court in the case of Rostam Parvaresh v. UOI - 2010 (259) E.L.T. 342 (Bom.) and Dhanak Madhusudan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered when the passengers were returning from Hong Kong and therefore, it is an import transaction and hence, the impugned order is bad in law, this issue needs careful consideration. The facts of the case are not in dispute. Three passengers, namely, S/Shri Fayaz Gulam Godil, Mukhtar Gulam, Farhan Shekhani, proceeded to Hong Kong on 22-5-2010 carrying foreign currency amounting to US $ 1,24,100 without declaring the same before Customs authorities. However, they were not allowed entry into Hong Kong and were deported back and they arrived in India on 24-5-2010; therefore, it was not a case of successful export of foreign currency but an attempt to take out the foreign currency from India, which failed. It is also on record that the currency was concealed and was never declared to the Customs authorities. As per the provisions of Foreign Exchange Management Act, 1999 read with Foreign Exchange Management (Current Account Transaction) Rules, 2000, no person shall draw foreign exchange (a) exceeding US $ 10,000 or 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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