TMI Blog2008 (1) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... ber (J) [Order per : Chittaranjan Satapathy, Member (T)]. - Heard both sides. 2. The present Miscellaneous Application has been filed by the applicant, Shri Amit Kumar Saha who is represented by the learned Advocate, Shri J.K. Srivastava. Briefly stated, the Customs Appeal No. C-110/2000 filed by the present applicant was heard by the earlier Bench on 18-10-2000 and the Order was pronounced on 15-2-2001 bearing No. A-160/Kolkata/2001 [2001 (135) E.L.T. 237 (Tri.-Kol.)] holding as follows: "5. After carefully considering the submissions and arguments advanced from both sides, we find that the Commissioner has given a categorical finding in the impugned Order to the effect that in the absence of any specific and direct evidence ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized currency, but he could not also identify the actual owner thereof, nor was any claim made with regard to the ownership of the same. It will also be noticed from the materials on record that Shri Saha had been found guilty under Sections 8(1) and 8(2) of the Foreign Exchange Regulation Act, 1973, and that in the absence of any specific and direct evidence about the improper importation and/or exportation of the seized currency, Shri Saha had only been charged as a carrier of the foreign currency. Admittedly, Shri Saha was found to be only a carrier in the proceedings commenced under the Foreign Exchange Regulation Act, 1973 and neither had any attempt been made by the person or persons who had en trusted the seized currency to Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would entail a fresh look at the factual aspect of the matter and which is, in any event, no longer relevant. We, therefore, refrain from answering the first question. The second question in the reference is, however, answered in the negative and we hold that the learned Tribunal was not justified in setting aside the order of confiscation of the currency seized from Shri Saha. Let a copy of our judgment be sent to CEGAT in terms of Section 130D of the Customs Act, 1962, and the learned Tribunal is directed to dispose of the matter in conformity therewith." 4. The applicant, through the Miscellaneous Application under consideration, prays for passing the same Order as was passed by the earlier Bench on 15-2-01 stating that that Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustified in setting aside the confiscation of the currency seized by the Department. He states that the function of the Hon'ble High Court is both advisory and judicial and since the applicant could not produce any evidence showing bona fide possession and licit acquisition of such huge quantities of foreign currency, it clearly points to illegal procurement of foreign currency. He, further, argues that since the applicant never claimed the ownership over the foreign currency, the Tribunal in the first place should have upheld absolute confiscation of the same and the Hon'ble High Court has rightly formed the opinion that the Tribunal was not justified in setting aside the confiscation and it has also directed the Tribunal to dispose off th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said High Court for variation of the said Order or in the alternative, they could have filed an appeal against the same. Having not taken either course, the decision contained in the said High Court Order dated 29-10-03 is binding on the applicant. Moreover, we find that in the subsequent decision dated 20-5-04, the same High Court while disposing off the Writ Petitions filed by both sides has clearly and unambiguously opined that the earlier Order of the Tribunal dated 15-2-01 had been set aside by the Hon'ble High Court by its Order dated 29-10-03 and further, that the Order of the Tribunal has been specifically held to be not justified in setting aside the Order of Confiscation of the currency seized from the applicant. The Hon'ble H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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