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TMI Blog2015 (1) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... alties of Rs. 50 lakhs on Shri Hole, Rs. 1.25 crore on Shri Rajendra G Bhutada, who claims to be the owner of the said currency and Smt. Bharati Bhutada, wife of Sri, Rajendra Bhutada, for their involvement in the alleged smuggling of the said foreign currency. Aggrieved of the same, the appellants are before us. 2. The facts relevant to the case are as follows. Sri. Suresh Gangaram Hole (Mr. Hole in short) was intercepted- by the Air Customs Intelligence Unit at the Mumbai Airport on 8-1-2006 while he was proceeding for security check after clearance by the immigration and customs authorities. Examination of his checked in baggage and personal search resulted in recovery of US $ 2,35,000, UAE Dirhams, 1,89,000 and Qatar Rial 2000, equivalent to Rs. 1,25,22,780/- Investigation conducted revealed that the said foreign currency was handed over to Sri. Hole by Sri. Rajendra G. Bhutada for smuggling out of India. Sri Hole further admitted that he had smuggled foreign currency twice on earlier occasions also and on one such occasion Smt. Bharati Bhutada had handed over packages of foreign currency to be handed over to Sri. Rajendra Bhutada in Dubai. As part of the investigations, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the panchas obtained later. Hence the same cannot be relied upon as an evidence for recovery of foreign currency from the appellant. (3) The statement recorded from the appellant in English was retracted on 9-1-2006 and all the subsequent statements recorded on 10th, 16th & 17th January and 23rd February, 2006 were in English (that is, in a language not known to the appellant) and the appellant had retracted all the statements vide affidavit dated 23-2- 2006. The statements, though recorded in the Jail, were not in the presence of Jail Officials. Therefore, these statements have no evidentiary value. All the subsequent statements are exculpatory. (4) As per the statement dated 8-1-2006, it has been alleged that the appellant was acting as a carrier for Mr. Butada in the smuggling of foreign currency; in the statement dated 10-1-2006, it has been recorded that he was working as a salesman with the company of Mr. Butada and there are a number of contradictions in the various statements recorded by the department. (5) The appellant had sought cross-examination of 7 witnesses but the same was allowed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has nothing to do with the same. The confrontation panchnama between her and Mr. Hole drawn on 1-9-2006, was never relied upon, and the investigating officer has also denied having drawn any such panchnama. Hence the entire charge against the appellant is on flimsy grounds without any basis. Accordingly, it is prayed that the penalty imposed on the appellant be set aside. (b) As regards the charges against Mr. Rajendra Butada, the appellant has been implicated only on the basis of uncorroborated and retracted confessional statement of co-noticee and the same cannot constitute sufficient basis for penalising the appellant. (c) The investigating agency has not conducted any enquiry to verify the genuineness of all documents submitted' by the appellant regarding the ownership and source of procurement of seized foreign currency. In the absence of a proper investigation and rebuttal of the' evidence produced by the appellant, the absolute confiscation of the seized currency is not warranted. Further, the show cause notice in this case has been issued only on 11-12-2006 whereas the currency was seized on 8-1-96, that is after a period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He further relies on the decision of the Hon'ble Madras High Court in the case of CC v. Brinda Enterprises [2010 (262).E.L.T. 239 wherein it has been held that if goods are .'prohibited', then they are liable to confiscation. Accordingly he pleads for upholding the impugned order and dismissing the appeals. 7. We have carefully considered the rival submissions. Our findings and conclusions are discussed in the ensuing paragraphs. 7.1 There are certain preliminary objections raised by the appellants pertaining to violation of principles of natural justice, that is obtaining statements under threat or coercion, disallowing the cross -examination of co-accused and other witnesses and so on. Sri Suresh Hole has contended that the statement recorded by the investigating officers on 8-1-2006 was obtained under threat and duress and therefore should not be relied upon and he was under illegal detention of the customs authorities before he was produced before the Chief Metropolitan Magistrate(CMM) on 9-1-2006. This contention of the appellant is clearly wrong for the reason that the CMM while considering the remand application on 9-1-2006 had recorded the following observation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed examination of the points urged by the appellants and the cogent reasons for rejection of cross-examination of the witnesses and holding why the statements have to be considered as voluntary and' incriminating. Therefore, we are of the considered view that these contentions raised before us in this regard lack merit and have been dealt with adequately by the adjudicating authority. As regards the contention that the Show Cause Notice should have been issued within 6 months of seizure, the Commissioner of Customs has the power to extend the time limit by "another six months. Therefore we do not find any infirmity in this regard. 7.3 It is an admitted fact on record that Sri. Suresh Hole brought to India foreign currency worth Rs. 1.25 crore approx. on 28-12-2005 without declaring the same before the customs authorities and" attempted to take, out the same out of India on 8-1-2006 at the behest of Sri. Rajendra Butada. As per Regulation 6 of Foreign Exchange Management (Export and Import of Currency) Regulations, 2000, effective from 1-6-2000, ''A person may - (a) send into India without limit foreign exchange in any form other than currency notes, bank notes and tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, liable to confiscation under Section 113(d) as ''any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force'' as well as under section 113(h) as ''any goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77''. 7.5 The liability to absolute confiscation of Indian currency attempted to be illegally exported was considered by a larger bench of this Tribunal in the case of Peringattil Hamza (supra) and after considering extensively the various decisions of the Hon'ble apex court, it was held by this Tribunal that- ''In case a person attempted to export Indian currency outside India without the permission of the RBI more-than Rs. 5000/- or Rs. 10,00d/- as the case may be, in that case the Indian currency can be absolutely confiscated and it is the discretion of the proper officer in the facts and circumstances of the case to allow redemption on payment of fine and imposition of penalty.'' The ratio of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign currency." 7.6 The ratio of the above decision was followed by this Tribunal in the case of M K S Mohammed Rafi v. Commissioner of Customs (Airport & ACC), Chennai [2014-TIOL-1681-CESTAT-MAD] wherein it was held that- ''Under Section 3 of the Foreign Exchange Management Act, 1999 read with Regulation 5 of the Foreign Exchange Management (Export & Import of Currency) Regulation, 2000, no person shall without the general or special permission of the Reserve Bank export/send out of India or import/bring into India any foreign exchange currency-admittedly, the appellant was carrying foreign currency without the permission of RBI - adjudicating authority had already examined as to whether in the facts and circumstances of the case, the goods may be released on payment of redemption fine and negatived the claim of the appellant, a habitual offender, who admitted that they have purchased the electronic goods in Singapore and brought the foreign currencies acquired through sale in the grey market and passing through green channel.'' Similarly in another case, recently decided by the Bangalore Bench of this Tribunal in the case of Joseph Sebastian Prekash v. Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso contrary to the initial statements of Sri Suresh Hole that the money was given to him by Smt. Bharati Butada in Pune for handing over the same to Mr. Rajendra Butada in Dubai. Further, there are contradictions in the statements of Sri. Rajendra Butada and Sri Suresh Gagaram Hole which has been discussed at length in the impugned order in paras 23 to 23.17 thereof. Further, the conduct of Sri. Rajendra Butada, immediately after the interception of Sri. Suresh Gangaram Hole on 8-1-2006 and his subsequent arrest is also very strange. If the money belonged to Sri. Butada and its source was genuine, there was no need for him not to respond to the various summons issued by the investigating officer during January to April, 2006, when he was very much in India at the relevant time and when he was very much aware that Sri. Suresh Gangaram Hole was intercepted by the Custom Authorities. The department had to approach the Addl. CMM, Mumbai for issue of summons to secure the presence of Sri. Rajendra Butada. It is also on record that during the said period Mr. Rajendra Butada was seeking legal advice on the matter and he was busy preparing documents for the illicit procurement of the seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X
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