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2016 (2) TMI 310 - DELHI HIGH COURT

2016 (2) TMI 310 - DELHI HIGH COURT - 2016 (334) E.L.T. 498 (Del.) - Illegal acquisition of foreign currency - Both the notices, however, placed sufficient evidence in support of the lawful acquisition of 1000 Euros each for authorized dealer. As regards 110 Euros, in his opinion, were lying unspent from their previous foreign visit. - These lawfully acquired 2110 Euros, were, however, used to conceal the 34000 Euros. - Held that:- It is not in dispute that foreign currency possessed by the peti .....

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as accepted the contention of the petitioner in adjudication proceedings and released the foreign currency in his favour, then he cannot be held liable under Section 132 of the Customs Act. - Decided in favor of petitioners. - CRL. M. C. 1990/2010 - Dated:- 8-2-2016 - Suresh Kait, J. For the Petitioner : Mr. Yogesh Verma, Advocate For the Respondent : Mrs. Sonia Sharma, Senior Standing Counsel ORDER Suresh Kait, J. CRL.M.C. 1990/2010 1. By way of the present petition, filed under Section 482 Cr. .....

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ut of 36110 Euros, 34000 Euros were acquired illegally in as much as no evidence as regards their lawful acquisition from an authorized dealer or money changer or otherwise was proved at the time of seizure or in their reply to show cause notice or at the time of personal hearing. Both the notices, however, placed sufficient evidence in support of the lawful acquisition of 1000 Euros each for authorized dealer. As regards 110 Euros, in his opinion, were lying unspent from their previous foreign .....

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seized respectively from Sh. Prem Kumar & Sh. Sachin Bharti under Section 119 of the Customs Act, 1962. However, I give an option to Sh. Prem Kumar to redeem the same on payment of redemption fine of ₹ 6000/- and to Sh. Sachin Bharti on payment of redemption fine of ₹ 5000/-. The Euros would however be released after obtaining a no objection certificate from the competent Court where the trial of the notices is pending. (ii) Confiscation of trousers, Olive green suit case of hard .....

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. (iv) I also impose a personal penalty of ₹ 4,00,000/- (Four Lakhs only) on Sh. Prem Kumar under Section 114(1) of the said Act. (v) I also impose a personal penalty of ₹ 2,00,000/- (Two Lakhs only) on Sh. Sachin Bharti under Section 114 (1) of the said Act. 4. Being aggrieved, the petitioner challenged the aforesaid impugned order in Appeal, wherein it is observed by the appellate authority in its order dated 17.10.2007 as under:- The issue involved here is whether the seized forei .....

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under: Except as otherwise provide in these regulations no person shall without the general or special permission of the Reserve Bank of India import or send out of India, any Foreign Currency . A plain reading of the Regulation makes it clear the Foreign Currency as such is not prohibited good and its import or export is subject to the permission given by the Reserve Bank of India. Further as per Regulation 7 (2)(ii) of the said Regulations (2) any person may take or send out of India (ii) for .....

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he Adjudicating Authority to warrant absolute confiscation, it (Adjudicating Authority) was required to give option to redeem the same for home consumption in terms of Section 125 of the Customs Act, 1962. In this context it is considered necessary to refer to the relevant portion of Section 125 of Customs Act. In his voluntary statement dated 28.09.2005 tendered under Section 108 of Customs Act, 1962 the appellant 1 admitted and claimed that out of EUROS 12925 recovered from appellant 2 EUROS 1 .....

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he impugned foreign currency on payment of a fine of ₹ 4,00,000/- (Rupees four lacs) under Section 125 of the Customs Act, 1962. The penalty imposed on the appellant 1 is also reduced from ₹ 4,00,000/- to ₹ 2,00,000/-. The adjudicating authority also imposed a penalty of ₹ 2,00,000/- on the appellant 2 which is on higher side as the entire foreign currency belonged to the appellant 1 as admitted by appellant 1 and as discussed above, the same is therefore reduced to ͅ .....

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ctively is unwarranted and not legal. Hence the order of confiscation is set aside and EUROS 1110 and EUROS 1000 released to the appellant 1 and the appellant 2 respectively without any fine. The impugned order-in-original no. 12/2007 dated 12.03.2007 passed by the Additional Commissioner of Customs, IGI Airport, New Delhi is upheld as modified above. 5. Ld. Counsel further submitted that as per the opinion of the appellate authority foreign currency was not prohibited under Customs Acts. Theref .....

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0/2011 on 13.12.2012, wherein in Para 14 it is observed as under: 14.................................................................................. ................................................................................. 22. While allowing the case of Sunil Gulati & Anr. V. R.K. Vohra, [145 (2007) DLT 612] this Court held that where the accused persons are exonerated by the competent authorities/Tribunal in adjudication proceedings, one will have to see the reasons for such exone .....

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ainst the petitioner, since the petitioner has been fully exonerated by the Joint Secretary to the Government of India, and same has attained the finality. 25. In view of the above submissions and discussions, I quash the proceedings in the criminal complaint dated 08.08.2002, under Sections 132 & 135 (1)(a) of the said Act, pending against the petitioner in the Court of Ld. ACMM, New Delhi. 15. Even otherwise, this Court is of the view that the argument raised by the learned counsel for res .....

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accused persons are exonerated by the competent authorities/Tribunal in adjudication proceedings, one will have to see the reasons for such exoneration to determine whether these criminal proceedings should still continue. If the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits or the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. If, on the other hand, the exoneration in the adju .....

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nd unambiguous finding that there is no such contravention of the provisions of the Act, it would be unjust for such departmental authorities to continue with the criminal complaint and say that there is sufficient evidence to foist the accused persons with criminal liability when it is stated in the departmental proceedings that ex facie there is no such violation. The yardstick would, therefore, be to see as to whether charges in the departmental proceedings as well as criminal complaint are i .....

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a Coordinate Bench of this Court in Chinta Devi Vs. Rajesh Arora Air Custom Officer (supra). 17. Consequently, present petition is allowed and the impugned order dated 25th November, 2010 passed by the Special Judge, NDPS, Patiala House Courts, New Delhi, is set aside and proceedings in CC No.971/1/02 are also quashed. 8. Ms. Sonia Sharma, Sr. Standing Counsel for Customs submitted that she has filed a counter-affidavit, wherein the stand of the Department is as under:- (i) The writ petition ne .....

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ersonal penalty (in short PP) imposed upon both the passengers and however only reduced the amount of PP. (ii) Further submitted writ petition is wrong and denied. However, ld. ACMM vide order dated 04.11.2009 ordered for release of foreign currency to the petitioner in terms of Orders of the Commissioner of Customs (Appeal) on consideration of the statement of both the accused that they will not dispute the circumstance of seizure and will not dispute identity of the seized foreign currency dur .....

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olation of Provision of Customs Act, 1962 as the currency was obtained from unauthorized sources which were in violation of Export and Import of Currency Regulations, 2000. She further submitted that vide order dated 04.11.2009, ld. ACMM ordered to release the currency to the petitioner in terms of order of Commissioner (appeal) on consideration of the statements of the petitioner that he will not dispute the circumstances of the seizure and will not dispute the identity of the seized foreign cu .....

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e petitioner purchased Euros 1,000 lawfully and his passport had an endorsement to this effect. The petitioner had residual amount of Euros 110 from the previous visit. The Adjudicating Authority found the same to be correct. Therefore confiscation of Euros 1110 from the petitioner and its release on payment of fine of ₹ 6000/- was unwarranted and illegal. Accordingly, vide order dated 17.10.2007, the Appellate Authority set aside the confiscation of Euros 1110 and directed the same to be .....

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that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both. 13. A perusal of the aforesaid Section shows that the said provision is applicable if there is any false declaration and due to which, if there is any evasion of duty, then the person would be dealt under Section 135 of the Customs Act, 1962. 14. Since, the petitioner has already been exonerated vide order d .....

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