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Shri Omprakash Jhunjhunwala, Shri Pankaj Kishore Jhunjhunwala, Shri Satish Choudhary And M/s. Monalisa Forex Services Pvt. Ltd. Versus Commissioner of Customs, (C.S.I Airport) Mumbai

2014 (6) TMI 989 - CESTAT MUMBAI

Confiscation of foreign currency - Penalty - Redemption fine - Held that: - There is no finding in the impugned order except retracted statement of Shri PKJ. There was no cogent evidence brought on record to show the involvement of the appellant in any manner in giving illegally any currency to Shri PKJ and non-disclosure by department as to how the seized and the allegedly exported foreign currency was illegally procured by the appellant - The genuineness of CDF for USD 70,000/- is not in doubt .....

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handed over the foreign currency to Shri PKJ. Therefore, as held by the Hon'ble apex court in the case of Vinod Solanki [2008 (12) TMI 31 - SUPREME COURT] and in K.I. Pavunny v. Asst. Collector (HO), Central Excise Collectorate, cochin [1997 (2) TMI 97 - SUPREME COURT OF INDIA] that "a find of fact was arrived at that the confession was voluntary in nature. Reliance therein for the purpose of arriving at the guilt of the accused was not only placed on the statement given under Section 108 of the .....

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n proceeded against was concerned with the smuggling or not. As the department has failed to establish that Shri OPJ was connected with the alleged smuggling of foreign currency, therefore no penalty is imposable on Shri CPJ. Therefore, the penalty on Shri OPJ is dropped. - As the adjudicating authority has held that the foreign currency seized from Monalisa Forex Services Pvt. Ltd. is not liable for confiscation. However, M/s. Monalisa Forex Services Pvt. Ltd. is no where connected with Shr .....

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rasekharan, Member (Technical) Shri A.M. Sachwani, Advocate, Shri R.R. Shah, Advocate for appellant Shri V.K. Singh, Addl. Commissioner (A.R.), For Respondent ORDER Per: Ashok Jindal These appeals are arising out of the impugned order which is as follows:- (a) I order absolute confiscation of the impugned foreign currency i.e. 70,000 US Dollars equivalent to Indian ₹ 31,11,500/- seized from Shri Pankaj Jhunjhunwala under Section 113 (d), (e) & (h) of the Customs Act, 1962, read with se .....

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confiscability of the US$ 3,50,000 equivalent to Indian ₹ 1,57,50,000/- approximately, smuggled out by Shri Pankaj Jhunjhunwala on his previous five visits, as they are not available physically, under the provisions of Section 113(d), (e) and (h) of the Customs Act, 1962 read with the FEMA 1999 and the Regulation made thereunder. I impose a fine of ₹ 1,57,50,000/- (Rs. One crore fifty seven lacs and fifty thousand only) under Section 125 of the Customs Act, 1962. (d) I impose penalt .....

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nd the wrappings of news paper and the polythene bag from which the bundles of foreign currencies were recovered in concealed from should not be confiscated and 119 of the Customs Act, 1962. (vi) I order release of the foreign currency i.e. 300 Euros, 770 UK Pounds, 2230 HR Dollars, 10 Kuwaiti Dinars, 10 US Dollars and 12,000 Irani Rials sized from M/s Monalisa Forex Services P Ltd. The same shall be adjusted against the penalties imposed against Shri Satish Chaudhary and Om Prakash Jhunjhunwala .....

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t. On intelligence, the Customs Officers of the Air Intelligence Unit intercepted the appellant who was about to depart to Dubai from module 2A of Chhatrapati Shivaji International Airport, Mumbai by Cathay Pacific's flight No. CX 751. On being asked, Shri PKJ produced his travel ticket and boarding pass and two baggage identification tags. One of the baggage identification tags relates to one dark blue coloured trolley bag of Charles Delon' make and another light green coloured hand bag .....

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3.01.2004 after issuance of the said CDF. The appellant could not answer satisfactorily to the queries made by the Customs Officers in the presence of Panchas. He was again questioned and on being asked, he submitted that these foreign currencies were given to him by one Shri Satish Choudhary, Proprietor of M/s Awin Exim Company and M/s Ekta Exports, Mumbai for handing over the currencies to M/s Mohammed Essa Al Marri Trading LLC Dubai. He also admitted that on his earlier five visits, he has ta .....

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s which have been taken out on the earlier five occasions on the basis of CDF produced and by asking why penalty should not be imposed against Shri PKJ. The show-cause notice was also issued to Shri Satish Choudhary and Shri Om Prakash Jhunjhunwala (Shri OPJ in short) both co-accused. The show-cause notice was adjudicated and impugned order was passed. Aggrieved with the impugned order, the appellants are before us. 3. Heard both sides. 4. Shri A.M. Sachwani, Advocate, learned Counsel appearing .....

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s in the local market and found the goods are not as per their requirement, therefore, he left India leaving behind these 70000 US $ in India but took away the CDF with him. The said 70000 US$ were being carried by the appellant on 22.02.2004 which were seized by the Customs authorities at the time of his departure. It is an admitted fact that the appellant was in possession of 70000 US$ which was recovered from him at the time of departure on 23.03.2004. The said amount was duly declared at the .....

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pellant at the very first opportunity within 24 hours. The appellant had made allegation against the officers who had assaulted him at the airport at the time of his detention in the Court itself before the Magistrate. Except the said inculpatory statement, no other independent and corroborative evidence has been brought on record and the case has been made out against the appellant only on the said inculpatory statement which was retracted within 24 hours. Therefore, the said statement cannot b .....

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he foreign currency of 70000 US$ seized on 23.02.2004 can be confiscated under the provision of Customs Act. The learned Counsel also submitted that the appellant has cross Shri Mehta, Panchanama Officer. The records cross-examination were recorded by the stenographer on the computer of the adjudicating authority. However, due to technical difficulties the cross-examination record could not be retrieved from the Computer, therefore, the records of the said cross examination could not be availabl .....

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currency which was denied by the appellant and on search it was observed that the appellant was having foreign currencies and having CDF issued by the Customs and in similar set of facts, the order of confiscation of foreign currencies and imposition of penalty was set aside. He also relied upon the decision in the case of Union of India Vs. Zohan Taherali Dalal - 2010 (257) ELT 209 (Bom.). 4.2. Shri S Agarwal, learned Advocate appearing on behalf of Shri Satish Chaudhary, co-accused and M/s. Mo .....

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ellant and relied on the statement of co-accused Shri PKJ which was retracted within 24 hours and without any corroborative evidence at all. As the statement is uncorroborated and the case has been made out on preponderance of probability, therefore the impugned order is to be set aside. The adjudicating authority has erred in holding that the onus is on the person, retracting the statement, to adduce conclusive evidence to prove that the statement was not voluntary is contrary to the decision o .....

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has doubted the integrity of the investigating officers and the derogatory remarks were not even challenged by the officers. There is no cogent evidence to show that the appellant has given US $ 70000/US$ 3,50,000/- to Shri PKJ as alleged. He further submitted that no cross-examination of the witnesses was granted to the appellant. Therefore, the impugned order is gross of principles of natural justice as held by the hon ble apex court in the case of Shalimar Rubber Industries - 2002 (246) ELT 2 .....

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so sought. Therefore, the statement cannot be relied upon. On merits, he submitted that CDF required to be produced only when the foreign currency brought under CDF is being taken back at the time of departure by the CDF holder. In the instant case CDF holder was admittedly Shri Pankaj K Jhunjhunwala who claims that he has not taken back to abroad, the currency declared in CDF on any earlier occasion. No-where in the law it is required that the foreign currency brought under CDF, if not encashed .....

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scation of the foreign currency. The observation of the adjudicating authority has no where proved was de facto owner of M/s. Mohammed Essa Al Marri Trading LLC, Dubai and with active connivance or aiding and/or abetting to sustain any penalty on the appellant. 4.3 There is no finding in the impugned order except retracted statement of Shri PKJ. There was no cogent evidence brought on record to show the involvement of the appellant in any manner in giving illegally any currency to Shri PKJ and n .....

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not in doubt. The seized currency recovered from Shri PKJ is clearly identifiable with the CDF also recovered at the spot from his possession. Therefore, the decision of this Tribunal in the case of Vashdev Gobindram Adnani (supra) is applicable to the facts of this case. 4.5 He further submitted that the show-cause notice issued to the appellant is without jurisdiction as smuggling of foreign currency dealt by the Foreign Exchange Management Act, 1999 (FEMA) and it is a Special Act dealing wit .....

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redemption fine of Shri PKJ and the penalty imposed on the other co-accused is not sustainable as Monalisa Forex Services Pvt. Ltd. is a private Ltd. Company and was not a co-noticee and nothing adverse was found against the Monalisa Forex Services Pvt. Ltd. Therefore, the amount seized from M/s. Monalisa Forex Services Pvt. Ltd. so held not liable for confiscation, shall be released immediately. 4.6 Shri Sheshgopalan, Advocate appeared on behalf of Shri Omprakash Jhunjhunwala and submitted that .....

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rther submitted that in this case the currency was seized from the checked-in baggage of Shri PKJ at the time when he was about to board the flight. The CDF was also in the checked-in baggage. Therefore, the intention to smuggling the foreign currency is very much clear from the act of Shri PKJ and when the statement was recorded Shri PKJ stated the truth before the Panchas and he named Shri Satish Choudhary (who delivered this foreign currency) to Shri PKJ to be delivered at Dubai to the employ .....

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ssioner of Customs, Chennai - 2011-TIOL-257-CESTAT-MAD related to recording of statements and hold that the statements on record clearly brings out that the appellant attempted to smuggle the foreign currencies out of India. He has also admitted that the foreign currencies seized from his checked in baggage as well as from the flush tank in the toilet belong to him and was to be smuggled out of India. Therefore, foreign currency was absolutely confiscated and penal action was also upheld. He fur .....

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impugned order has to be upheld and the appeal filed by the appellant has to be dismissed. 6. As there are four appeals and are having argued separately, therefore we are considering each case separately. 7. Shri Pankaj Kishore Jhunihunwala (Shri PIZ). (a) In case of Shri PKJ a case has been made out on the basis of investigation done on 22.04.2004. While Shri PKJ has admitted that he was leaving to Dubai on 23.04.2004 by Flight but Shri PKJ has not admitted to smuggle the foreign currency of 7 .....

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found that although Shri PKJ has gone out of India on five occasions after 08.09.2003 (when the CDF was obtained) but no corroborative evidence has been produced by the Revenue either by any statement or by any other cogent evidence that on all the occasions, Shri PKJ was carrying foreign currency with him at the time of going out of India. Therefore, it is only a presumption that earlier occasions also, he had smuggled foreign currency of 70000 USD each time and the said currency is liable for .....

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ine for the violation of provision of Section 113(d) of the Customs Act and could be redeemed on payment of redemption fine of ₹ 5,00,000/-. As the foreign currency was held liable for confiscation, therefore he is liable for the penalty under Section 114(i) of Customs Act, 1962. Accordingly the penalty of ₹ 4,00,000/- is confirmed on Shri PKJ. (c) As discussed above there is no cogent evidence for confiscation of US$ 3,50,000 as the same has been held on the basis of preponderance o .....

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und during the course of investigation against Shri Satish Choudhary to prove that Shri Satish Choudhary has handed over the foreign currency to Shri PKJ. Therefore, as held by the Hon'ble apex court in the case of Vinod Solanki (supra) and in K.I. Pavunny v. Asst. Collector (HO), Central Excise Collectorate, cochin - 1997 (3) SCC 721 that "a find of fact was arrived at that the confession was voluntary in nature. Reliance therein for the purpose of arriving at the guilt of the accused .....

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r the purpose of a proceeding in a criminal case or a quasi criminal case but there cannot be any doubt whatsoever that the court is obligated to take into consideration the pros and consignment of both the confession and retraction made by the accused, In this case, the premises of Shri Satish Choudhary was searched as he was involved in the activities of money exchange and on investigation it was found that foreign currency seized was not liable for confiscation. In the absence of corroborativ .....

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. In the statement he has stated that advance payment were received only through banks and the cash brought by Shri PKJ was for some other purpose, nature of which could be given by Shri Satish Choudhary only. As the findings are on the basis of statement of other and in the case of D. Bhoormal (supra) the hon ble apex has held that in case of penalty, the department has to prove that the person proceeded against was concerned with the smuggling or not. As the department has failed to establish .....

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rvices Pvt. Ltd. cannot be adjusted against dues of other co-appellants. Accordingly, the adjustment of the foreign currency seized from M/s. Monalisa Forex Services Pvt. Ltd. against the dues of other co-appellants is not sustainable, hence set aside. 8. From the above discussion the following order is passed: (a) It was held that the foreign currency of ₹ 70,000 US $ was held liable for confiscation and same can be redeemed on payment of redemption fine of ₹ 5,00,000/-. A penalty o .....

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d liable for confiscation within seven days of the receipt of this order. 9. Appeals are disposed of in the above terms. (P.R. Chandrasekharan) Member (Technical) (Ashok Jindal) Member (Judicial) P.R. Chandrasekharan 9. I have carefully gone through the order passed by my brother learned Member (Judicial). However, I have a different view on two of the issues decided by the learned Member (Judicial). These are discussed below. 10. The learned Member (Judicial) has held that the foreign currency .....

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fication No. FEMA/16/RB-2000 dated 3rd May, 2000, issued by the Reserve Bank of India under the provision of clause (g) of sub-section (3) of Section 6 and sub-section (2) of Section 47 of the FEMA, 1999, there are restrictions placed on the export of foreign exchange and currency notes as per para 7 of Foreign Exchange Management (Export and Import of Currency) Regulations, 2000. The said regulation is reproduced below:- Export of foreign exchange and currency notes : (1) An authorised person m .....

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of vessels or aircrafts which has been brought into India or which has been taken on board a vessel or aircraft with the permission of the Reserve Bank; (3) any person may take out of India,- (i) foreign exchange possessed by him in accordance with the Foreign Exchange Management (Possession and Retention of Foreign Currency) Regulations, 2000; (ii) unspent foreign exchange brought back by him to India while returning from travel abroad and retained in accordance with the Foreign Exchange Manage .....

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) Regulations, 2000, or unspent foreign exchange brought back by any person to India while returning from travel abroad and retained in accordance with the said Regulation or unspent foreign exchange not exceeding the amount brought in and declared in accordance with the clause (b) of Regulation 6 on arrival in India by a person, can be taken out of India. In the instant case, there is no evidence brought on record by Shri Pankaj Kishore Jhunjhunwala that US $ 70000 seized from him satisfies any .....

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the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with." Once the goods are prohibited, then under Section 125(1) of the said Customs Act, it is the discretion of the adjudicating authority to allow redemption on payment of fine. In the instant case, Shri Pankaj Kishore Jhunjhunwala states that the currency does not belong to him and the same was given by Shri .....

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(259) ELT 541 (Mad.) and this Tribunal in the case of Salim M, Mamdani Vs. Commissioner of Customs (Airport), Mumbai - 2007 (217) ELT 94 (Tri. - Mumbai) upheld the absolute confiscation of foreign currency attempted to be smuggled into/out of India and held that such absolute confiscation is justified. Following these decisions, I am of the view that absolute confiscation or the foreign currency of US $ 70000 in this case is justified. 11. The second issued relates to exoneration of Shri Satish .....

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(Judicial). 11.2 In the statement dated 21.03.2004, Shri Satish Choudhary has clearly admitted that he was running the business of travel agency and foreign exchange dealer in the name of M/s Awin Exim Co. Ltd., and M/s Mona Lisa Forex Services Ltd. In respect of a passport of one Shri Malkani, the Basic Travel Quota (BTQ) of foreign exchange was issued even though the said passenger had lost his passport and the said person had stated before the Customs that he had not purchased any such forei .....

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ases it was found Shri Satish Choudhary had issued foreign currency against the provisions of law in respect of passports which were either lost or which contained bogus address or issued foreign currency in excess than permitted under the law. Such violations of foreign exchange by Shri Satish Choudhary clearly points out the fact that he has been indulging in violations of FEMA, 1999. It is further noted that Shri Pankaj Kishore Jhunjhunwala in his statements dated 17.03.2004 and 18.03.2004 re .....

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unwala under these documents had been encashed by these agencies even though he was not present in India at the time of encashment. The encashment of the foreign currency by M/s. Mona Lisa Forex Services Ltd., though the person who brought in foreign currency under Customs Declaration Form was not present in India, clearly indicates violation of FEMA by the said firm M/s. Mona Lisa Forex Services Ltd., which is run by Shri Satish Choudhary. Further, Shri Pankaj Kumar Jhunjhunwala in his statemen .....

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borative evidences available on record clearly indicates the involvement of Shri Satish Choudhary in the illegal export of foreign currency and, therefore, it is incorrect to say there is no corroborative evidences against Shri Satish Choudhary. 11.3 The Hon'ble Apex Court in the case of Naresh J. Sukhawani Vs. Union of India - 1996 (83) ELT 258 (SC.) held that statement of co-accused can be used as a substantive evidence connecting the accused with contravention of illegal export of foreign .....

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d until it is established that the same were recorded under coercion. In the light of these judgements, which in my view apply squarely to the facts of the present case, the involvement of Shri Satish Choudhary in the attempted smuggling out of foreign currency of US $ by Shri Pankaj Kumar Jhunjhunwala stands established on the basis of preponderance of probability. Therefore, Shri Satish Choudhary is liable to be penalized under the provision of Section 114 (i) of the Customs Act, atleast to th .....

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/- under the provision of Section 114(i) of the Customs Act, 1962, apart from Shri Pankaj Kumar Jhunjhunwala. (P.R. Chandrashekharan) Member (Technical) As there is a difference of opinion has arisen between the Member, therefore, the matter is placed before the Hon ble Vice President/HOD for considering the following issues by a 3rd Member:- Difference of Opinion Following difference of opinion is placed before the Hon'ble Vice President/ HOD:- (a) Whether in the facts and circumstances of .....

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Member (Judicial) Third Member decision Per: M.V. Ravindran This matter arises out of the Show Cause Notice dated 19-08-04 was issued to Shri Pankaj Jhunjhunwala, Shri Om Jhunjhunwala and Shri Satish Choudhary, proposing inter alia confiscation of foreign currency of- (i) USD 70,000 (INR 31,11,500/-) seized from Shri Pankaj Jhunjhunwala, under section 113(d), (e) & (h) of the Customs Act, 1962, read with section 6(3)(g) of FEMA, 1999 and the Regulations made there under, (ii) US $ 3,50,000 .....

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Pankaj Jhunjhunwala, u/s 111(d) ibid, 2. In Adjudication, vide the impugned Order, the adjudicating inter alia directed - (a) absolutely confiscating of the foreign currency amounting to US $ 70000 seized from the possession of Shri Pankaj Jhunjhunwala under Section 113(d), (e) & (h) of the Customs Act, 1962, read with Section 6(3)(g) of FEMA, 1999 and Regulations made thereunder, (b) penalties u/s 114(i) for attempted smuggling of seized US $ 70,000/- on- (i) ₹ 4,00,000/- on Shri Pank .....

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kaj Jhunjhunwala, (ii) ₹ 15,00,000/- on Shri Satish Choudhary, (iii) ₹ 15,00,000/- on Shri 0m Prakash Jhunjhunwala; 3. The currency seized from Monalisa Forex Services and from residence of Shri Pankaj Jhunjhunwala were held not liable for confiscation and no penalty was imposed on the appellants in respect thereof. The Adjudicating Authority also directed adjustment of the currency seized from Monalisa Forex Services Pvt Ltd against the penalties imposed against Shri Satish Choudhar .....

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d on each of the appellant in respect thereof in absence of any cogent material evidence to substantiate the said allegation, Penalties imposed on Shri Om Prakash Jhunjhunwala merely on the basis of statements was also set aside. It was also held that the adjustment of the foreign currency seized from Monalisa Forex Services Pvt Ltd against the dues of other co-appellants is not sustainable, and hence was set aside. 6. However, difference in opinion arose in the above appeals on the following th .....

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The first two issues are interlinked. Member (J) has held the foreign currency amounting to US $ 70000 seized from the possession of Shri Pankaj Jhunjhunwala is liable for confiscation, but has permitted redemption thereof on payment of redemption fine of ₹ 50,000/-. The Member (T) however has maintained absolute confiscation of the said seized foreign currency. Thus, so far as the confiscation of this foreign currency amounting to US $ 70000 seized from the possession of Shri Pankaj Jhunj .....

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and no material evidence was found in investigations against Shri Satish Choudhary to prove that he had handed over the foreign currency to Shri Pankaj Jhunjhunwala. However, the Member (T) held that statement of co-accused can be used as a substantive evidence and the same is binding unless and until it is established that the same were recorded under coercion. Hence, Member (T) was of the view that penalty of ₹ 4,00,000/- shall be imposed on Shri Satish Choudhary. 9. I have heard both s .....

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e voluntarily presented the CDF to declare the foreign currency carried by him, there was no absolute prohibition on its export. It is a matter of record that he was claiming seized foreign currency even in reply to the Show Cause Notice as reproduced in the impugned order. He claimed that he was carrying back the currency for returning the same to his employer Mohammed Essa Al Marri Trading LLC, Dubai, as evident from his submissions on record. His first statement on the basis of which is incul .....

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in section 2(33) of the Customs Act, 1962 has been applied liberally, including in Om Prakash Bhatia Vs. Union of India, 2003 (155) ELT 423 (SC) and Sheikh Mom Omer Vs. Collector, 1983 (13) ELT 1439 (SC). However, in these precedents the issue whether in the context of Section 125, the definition of 'prohibited goods' under Section 2(33) is applicable or not, was not the question. Hon'ble Andhra Pradesh High Court in Shaikh Jamal Basha Vs. GOI, 1997 (91) ELT 277 (AP), after consider .....

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of goods which can be imported, but because of the method of importation adopted, become liable for confiscation. Hon'ble Madras High Court in T Elavarasan, 2011 (266) ELT 167 (MAD HC) = 2011-TIOL-762-HC-MAD-CUS, was pleased to rely on the said judgment of Hon'ble Andhra Pradesh High Court and held that an option has to be given to the petitioner to pay the applicable customs duty and the redemption fine and to get the gold jewellery released, as per Section 125 of the Customs Act, 1962 .....

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;prohibited' will have to be construed in regard to the text and context in which it is used and the words prohibition, restriction and regulation are meant Most importantly, the section 2(33), which is reproduced hereinafter, is with a rider unless the context otherwise requires:- "2. Definitions - In this Act, unless the context otherwise requires - '(33) prohibited goods j means any goods the import or export of which is subject to any prohibition under this Act or any other law .....

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is "prohibited" under the Act or any other law, upon confiscation he "may" give to the owner of the goods an option to pay in lieu of confiscation such fine as he thinks fit, and in the case of any other goods, he "shall" give to the owner of the goods an option to pay fine in lieu of confiscation, such fine as he thinks fit. If the same definition is applied in the context of section 125, it would result in absurdity rendering the word 'shall' redundant and .....

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39; in said section would be rendered redundant and meaningless. In the context of the statutory provisions of section 125, so as to give a meaningful application to both words 'may' and 'shall C used in the said section, the definition of 'prohibited goods is inapplicable by application of settled principles of statutory interpretation as held in Ramesh Mehta Vs Sanwal Chand Singhvi, (2004) 5 SCC 409. Under section 125 of the Customs Act, unless the importation or exportation of .....

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enged by the Revenue. Moreover, the Hon'ble Punjab and Haryana High Court in the matter of Horizon Ferro Alloys Pvt Ltd Vs Union of India, 2016-TIOL-1239-HC-P&H-CUS concurred with the view taken by the Tribunal in the above judgment, while permitting provisional release of seized cigarettes, and observed as follows- 5. ……….. The petitioner company relies upon the Order dated 4.8.2015 of the Customs Excise and Service Tax Appellate Tribunal in the matter of Bhargav B. .....

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the Hon'ble Apex Court inter alia observed that the meaning of word "prohibited" will have to be construed in regard to the text and context in which it is used and the words prohibition, restriction and regulation are meant to be applied differently, The Tribunal also observed that in the context of Section 111 (d) or 113(d), in several precedents, the definition of 'prohibited goods' as contained in Section 2(33) of the Customs Act, 1962 has been applied liberally, inclu .....

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C 409 for ascertaining the scope of words 'unless the context otherwise requires' appearing in Section 2(33) for application of the definition of prohibited goods', and rightly held that the liberal definition of Section 2(33) which is applied in the context of Section 111 or 113 cannot be applied in the context of Section 125. The Tribunal relied upon the judgment of Hon'ble Andhra Pradesh High Court in Shaik Jamal Basha Vs. GOI, 1997 (91) ELT 277 (AP), wherein after considering .....

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is available in respect of goods which can be imported, but because of the method of importation adopted, become liable for confiscation. Hon'ble Madras High Court in T Elavarasan, 2011 (266) ELT 167 (MAD HC) = 2011- TIOL-762-HC-MAD-CUS was pleased to rely on the said judgment of Hon'ble Andhra Pradesh High Court and held that an option has to be given to the petitioner to pay the applicable customs duty and the redemption fine and to get the gold jewellery released, as per Section 225 o .....

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any situation where the goods would be liable to confiscation under Section 111 and 113 as the case may be without there being any violation of the provisions under the Customs Act, 1962 or under any other law or rules, regulations made thereunder. Therefore, in the context of statutory provisions of Section 125, so as to give a meaningful application to both words 'may' and 'shall used in the said Section, the definition of 'prohibited goods' is inapplicable by application .....

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ted" for importation. Therefore, ultimately the petitioner company who is owner as well as importer would be entitled for an option to redeem the goods even upon adjudication. In such case, Section 110A concerning provisional release would be applicable." 13. None of the judgments relied upon by the Revenue deal with the issue of absolute confiscation in the context of the language used in Section 125 and the words "unless the context otherwise require" used in Section 2 of t .....

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J) in this regard. First two issues are answered accordingly. 16. So far as the third issue is concerned, I concur with the view taken by the Member (J) for the following reasons- (i) It is admitted position that Shri Pankaj Jhunjhunwala, who in his first statement alleged that the foreign currency was given by Shri Satish Choudhary, retracted his statement on the first available opportunity. (ii) His retracted statement was at variance with his submissions made in judicial proceedings such as h .....

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mination cannot be accepted as gospel truth when contrary versions are also available on record in light of the ratio laid down by the Hon'ble Supreme Court in Shalimar Rubber Industries, 2002 (146) ELT 248 (SC). (v) Shri Satish Choudhary in his statements never accepted the allegation of giving foreign currency to Shri Pankaj Jhunjhunwala. Exculpatory statements of Shri Satish Choudhary cannot be ignored without any justifiable reasons, to give credence to the retracted, contradictory and h .....

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o Shri Pankaj Jhunjhunwala as alleged. (viii) The entire gamut of alleged evidence and discussions in the show cause notice is for extraneous reasons such as to show irregularities in functioning of FFMC, discounting of export bills, advance payments made, procurement of export orders, etc, not germane to the confiscation of the seized currency of USD 75,000/-. (ix) It is true that every link of a chain is not required to be established to prove a case with mathematical precision, however at lea .....

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, etc. if the same is to be relied upon solely for the purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confes .....

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d can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible therefrom. [See Haricharan Kurmi etc. v. State of Bihar AIR 1964 SC 1184; Haroom Haji Abdulla v. State of Maharashtra AIR 1968 SCC 832; and Prakash Kumar v. State of Gujarat (2007) 4 SCC 266]. 16. We may, however, notice that recently in Francis Stanly @ Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvanth .....

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