TMI Blog2015 (4) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... ine in lieu of confiscation. The para 6 of Foreign Exchange Regulations only permit an amount of 5000$ which is attempted to be taken out of India has to be possessed in accordance with para 7 (3) (i) and 3(ii) of FEMA Regulations. It has not even been proved by the appellant that he was in legal position of 5000$ what to talk about 70000$. Thus, the possession of such huge amount of foreign currency is prohibited under FEMA Regulations and the option to redeem the same under Section 125 is not there. Even if one extends the argument that the verdict of the larger bench related to a case of Indian currency, I find that in the present case the appellant does not deserve my discretion to give an option to pay fine in lieu of confiscation. In view of the totality of circumstances and the evidentiary value of facts, the appellant does not deserve an option to release the goods on payment of redemption fine. His clear active role in the act of smuggling also does not deserve mitigation of the penalty imposed. - Decided against assessee. - Appeal No. C/211/2007-Mum - Final Order No. A/1446/2014-WZB/C-IV(SMB) - Dated:- 14-11-2014 - P. S. Pruthi,J. For the Appellants : Ms. Dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wledge the passenger could not declare the same at the time of bringing it into India and while taking it out of India. She referred to the affidavit given by his brother Shri Abdul Karim Haji Kassam dt. 7.1.2014 in Houston, Taxas, U.S.A. stating that the money belongs to the brother. Pleading for release of currency on payment of redemption fine she relied on (i) Felix Dores Fernandes Vs. C.C. 2000 (118) ELT -539-Tribunal (ii) Kishin Shewaram Loungini Vs. C.C. 2002 (140) ELT -225 (Tri-Mumbai) (iii) Halithu Ibrahim Vs. C.C. 2005 (183) ELT -307-Tri-Chennai It was stated in the grounds of appeal that as per Tribunal's order in the case of Poonolly Vs. C.C. [2005 (192) ELT -263 (Tri-Chennai)], only currency in excess of US$ 25000 (as permitted by RBI) is liable for confiscation. Therefore, according to her, penalty is also not legally sustainable. 5. The Ld. AR referred to the facts contained in the adjudication order pointing out the circumstances under which the passenger was apprehended, the detection of concealed currency, the confessional statements given by him repeatedly and voluntarily in his own handwriting, even after retraction, the statement of the trav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn Currency) Regulations, 2000 ; (ii) unspent foreign exchange brought back by him to India while returning from travel abroad and retained in accordance with the Foreign Exchange Management (Possession and Retention of Foreign Currency) Regulations, 2000; 4) Any per residue outside India may take out of India unspent foreign exchange no exceedingly the amount brought in by him and declared in accordance with the proviso to clause (b) of Regulation 6, on his arrival in India. No evidence has been brought forth by the appellant to establish that the foreign exchange possessed by him was obtained in accordance with Regulation 7(3)(i) or that it was obtained by him as unspent foreign exchange in terms of Regulation 7 (3) (ii) or any other provisions of the said Act or the Regulations. Further, Regulation 7 (4) provides that any person resident outside India may take out of India unspent foreign exchange not exceeding the amount brought in by him and declared. The appellant is not resident outside India. Therefore, this provision does not help him. The facts read with the law stated above clearly point to a deliberate act of attempt to smuggle foreign currency for export. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons there is no doubt that the appellant indulged in the act of smuggling of foreign currency making it liable to confiscation under Section 113 of the Customs Act. 6.2 A plea has been taken that since currency is not a prohibited item, an option must be given under Section 125 of the Customs Act to pay fine in lieu of confiscation. Section 125(1) is extracted below for convenience: 125. Option to pay fine in lieu of confiscation. - (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit. Whether the currency can be absolutely confiscated has already been decided by the Larger Bench in the case of Peringatil Hamza vide order No. M/1280/14/CSTB/C-I dt. 23.6.2014 wherein it held that In case a person attempted to export In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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