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Mr. Fayaz Gulam Godil, Shri Mustafa Kathawala Versus Union of India & Others

2016 (6) TMI 628 - BOMBAY HIGH COURT

Smuggling of foreign currency - levy of penalty - applicability of section 111 and section 113 of the Customs Act, 1962 - Held that:- The foreign currency in this case was attempted to be improperly exported. It is one thing to say that the currency may have been taken without complying with FEMA and the Rules thereunder, but on reaching the foreign country, these persons were deported. On deportation, they boarded a flight to return to India, but with the currency with them. It is these goods w .....

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was rightly dealt with. This is not a case where any other provision but section 113 could be applied. In the facts peculiar to this case, the invocation and application of section 113 also was permissible. - Decided against the appellant. - Customs Appeal No. 24 of 2015, Notice of Motion No. 2190, 2191 of 2015, Customs Appeal No. 75 of 2015 - Dated:- 6-6-2016 - S. C. Dharmadhikari And Dr. Shalini Phansalkar Joshi, JJ. For the Appellant : Mr. Sujay N. Kantawala with Mr. Brijesh Pathak For the R .....

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ion of India reported in 2010 (259) ELT 342 would bind the Tribunal. Secondly, whether it is legal and proper for the Tribunal to not consider the position with regard to applicability of section 111 and section 113 of the Customs Act, 1962. 3. This is not a case where the Indian currency was tried to be smuggled out of India. This was a case of an alleged smuggling of foreign currency, but the act was complete on the appellants leaving the Indian shores and reaching Hong Kong. Thereafter, havin .....

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iance with law and the appellant before this Court. 4. He, therefore, submits that the appeals be admitted. 5. We are unable to agree with Mr. Kantawala and for more than one reason. The facts are not in dispute. The two appellants before us smuggled to Hong Kong, foreign currency concealed in their baggage. These persons were deported back from Hong Kong. Upon landing back in India, they were intercepted by the Directorate of Revenue Intelligence officials after crossing the green channel on th .....

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d. However, we do not find that in law the authorities were prevented from issuing a show cause notice. The Customs Act, 1962, refers to both the terms - export as defined in section 2(18) and the term import as defined in section 2(23). The term goods as defined in section 2(22) includes currency and negotiable instruments. The term prohibited goods is defined in section 2(33) and reads as under : 2. Definitions.- (1). … … … … … (33) prohibited goods means any .....

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less compliances were made with the other law for the time being in force, namely, Foreign Exchange Management Act, 1999, read with Foreign Exchange Management (Current Account Transaction) Rules, 2000. Once this was the act attributed to these persons, then, it was the discretion of the Adjudicating Authority to allow redemption or to resort to absolute confiscation. The Tribunal once having been apprised of a discretionary power available under section 125 was only required to consider the two .....

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tation, they boarded a flight to return to India, but with the currency with them. It is these goods which were taken away without the above compliance. They were confiscated. The definition of the term 'prohibited goods' has been understood and applied in the above circumstances. The question was how they should be dealt with in the discretionary power of the authority. Whether there should be absolute confiscation or a redemption permitted. We do not find either in the order of admissi .....

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