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TMI Blog2015 (4) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... the passenger Shri Abubaker Haji Qasim at Mumbai Air Port on 20.5.2005, who had already checked in for a flight to Singapore. On enquiry, the appellant admitted that he was carrying about 75,000 US$ in his checked-in baggage and the same was not declared by him to Customs. Therefore, the passenger was off loaded and examination of his checked in baggage resulted in discovery of foreign currency namely US$, Hongkong $ and Singapore $ all equivalent to Rs. 32,87,673/-. Panchanama was drawn and the said currency was seized under the provisions of the Customs Act. Further, enquiries and investigations were undertaken and statements of the passenger were recorded under Section 108 of the Customs Act, on 21.5.2005, 3.6.2005, 7.6.2005 and 22.7.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down in the Foreign Exchange Management Act (FEMA), 1999 read with the Foreign Exchange Management (Export and Import of Currency) Regulations 2000. Regulations 5 and 7 are as under: 5. Prohibition on export and import of foreign currency:- Except as otherwise provided in these regulations, no person shall, without the general or special permission of the Reserve Bank, export or sent out of India, or import or bring into India, any foreign currency. 7. Export of foreign exchange and currency notes :- (1) An authorised person may send out of India foreign currency acquired in normal course of business, (2) any person may take or send out of India, - i) ....... ii) foreign exchange obtained by him by drawal from an authorised person i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the fact that the currency was contained in one brown colour sealed envelope placed in the checked in baggage which is a trolley bag. That is, the passenger attempted to export currency concealed in baggage and had brought it into the limitation of the Customs area in violation of Section 113 (e) of the Customs Act. 6.1 The plea of the Ld Counsel that the currency belongs to appellant's brother in US turns out to be a rather weak defense. Firstly, there is no convincing explanation as to how this currency said to be given by his brother was brought into the country by the appellant in such large amount i.e. more than 700000 US$. The affidavit is dated 1.7.2014 i.e. more than 9 years after the date of the incidence. The question arise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought into India illegally and the same would be liable to confiscation. From the circumstances and the legal provisions there is no doubt that the appellant indulged in the act of smuggling of foreign currency making it liable to confiscation under Section 113 of the Customs Act. 6.2 A plea has been taken that since currency is not a prohibited item, an option must be given under Section 125 of the Customs Act to pay fine in lieu of confiscation. Section 125(1) is extracted below for convenience: "125. Option to pay fine in lieu of confiscation. - (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at to talk about 70000$. 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. 6.3 The case laws of 2012 (276) ELT 129 (GOI), MD Kalim Ansari Vs. Commissioner of Customs (Prev.), Calcutta 2004 (178) E.L.T. 573 (Tri-Kolkata), Azizur Rahaman vs. Commissioner of Customs (prev.) Kolkata 2012 (285) E.L.T. 401 (Tri. Kolkata) cited during the hearing do not come to the aid of the appellant. In the last ..... X X X X Extracts X X X X X X X X Extracts X X X X
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