TMI Blog2019 (12) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... f Commissioner (Appeals) is fallacious and is completely devoid of merit - The role of Virender Verma cannot be undermined in this Hawala racket. Government observes that Virender Verma has abetted smuggling of impugned forex and is liable for penalty under Section 114 of Customs Act, 1962. A lesser amount of penalty has been imposed on Tushar Kumar by the adjudicating authority since he is the carrier of the impugned currency. Government holds that keeping in view gravity of the offence and the fact that the respondent is a habitual offender, a higher quantum of penalty merits to be imposed on Tushar Kumar. Government modifies the orders passed by the lower authorities as follows - Impugned currency is confiscated under Section 113(d), (e), (h) and (i) of the Customs Act, 1962 - The option of redemption under Section 125 of the Customs Act, 1962 is denied - A penalty of ₹ 5 lacs (Rupees Five Lacs) is imposed on Tushar Kumar under Section 114(i) of the Customs Act, 1962 read with Regulation 13 of Foreign Exchange Management (Export and Import of Currency) Regulation, 2000 - Penalty of ₹ 7 lacs (Rupees Seven lacs) imposed on Virender Verma by the adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and no communication for adjournment has been received from them. Hence the case is being decided on the basis of evidence on record. 4. The case file C. No. VIII (AP) 10/P I/835-C/Dep/2014 was sought from the applicant on 6-11-2019. From the perusal of the file it has been observed that a Complaint for offences punishable under Sections 132 135(1)(a) 135(1)(b) of the Customs Act, 1962 has been filed by the applicant against the respondents Shri Tushar Kumar and Virender Verma on 25-3-2017. Shri Tushar Kumar in his statement dated 3-7-2014 recorded under Section 108 has stated the currency did not belong to him and the same was handed over to him by the mother of one person, namely, Sh. Virender Verma of Delhi, alleged to be the owner of currency. The currency was concealed inside the inner linings of his check in baggage so as to avoid detection by the Customs. He did not have any documents or evidence for lawful possession of the impugned currency. He further stated that Virender Verma was introduced to him by his cousin. Shri Ayush Malik and had promised him ₹ 20,000/- for carrying the currency. Shri Tushar Kumar was arrested on 3-7-2004 and was released on Bail Bon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that no foreign currency can be send out of India or brought into the country without the permission of the Reserve Bank of India. As per Regulation 3(1) and Regulation 5 of Foreign Exchange Management (Export and Import of Currency) Regulations, 2000, read with Foreign Exchange Management (Possession and Retention of Foreign Currency) Regulations, 2000, at the material time reads as follows :- any person may take out of India foreign currency notes, bank notes and foreign currency travellers cheques not exceeding US$2000 or its equivalent in aggregate. The legal provisions of FEMA, 1999, the Foreign Exchange Management (Export and Import of Currency) Regulations, 2000, Section 2(33) of the Customs Act, 1962 read with Section 11 clearly stipulate that an attempt to smuggle foreign currency out of India which has not been procured from authorized sources is prohibited . Therefore the impugned foreign currency seized from the respondent Shri Tushar Kumar concealed and attempted to be illegally exported in violation of the provisions of FEMA, 1999, read with Foreign Exchange Management (Export and Import of Currency) Regulations, 2000 and Section 11 of Customs Act, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y has been paid by Virender Verma. This further reflects the financial condition of Tushar Kumar. Hence he is a mere carrier of impugned foreign currency. 10. Apart from the statement of Shri Virender Verma recorded under Section 108 of Customs Act, 1962, that the impugned forex is the proceeds of his legal business in Hong Kong, there is no corroboratory evidence on record to verify the veracity of his claim. Apex Court in the case of Naresh J. Sukhawani v. UOI [1996 (83) E.L.T. 258 (S.C.)] has held as follows : It is contended that the statement of co-accused could be used only to corroborate other evidence as one of the circumstances under Section 30 of the Evidence Act. But it cannot be used as substantive evidence without corroboration from other independent evidence. Since the statement of Virender Verma does not get corroborated from the evidence on record, the finding of the adjudicating authority that Virender Verma is the owner of forex remains unsubstantiated. 11. As mentioned earlier Tushar Kumar was arrested by the Customs Authorities and was released on bail on 3-7-2004. It is pertinent to note that bail bond dated 3-7-2014 of Tushar Kumar was furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hom to redeem the goods has held in para 3 of the judgment has held as follows :- 3. In the instant case, according to the respondent himself the owner was Karimuddin as he had acted on behalf of Karimuddin. The question of the Tribunal exercising the jurisdiction u/s 125 of the Customs Act and remit the matter to give an option to the respondent herein to redeem the goods was clearly without jurisdiction. In light of above judicial pronouncements Government holds that impugned forex is liable for absolute confiscation under Section 111 of Customs Act, 1962. 13. Shri Virender Verma in his statement tendered under Section 108 of Customs Act, 1962 before the customs officers has stated that the impugned goods belonged to him and were kept in cash in India and he had requested for delivery of the same in Hong Kong. The Supreme Court of India in the case of Surjeet Singh Chhabra v. U.O.I. [1997 (89) E.L.T. 646 (S.C.)] has held as follows :- Evidence - Confession statement made before Customs officer though retracted within six days is an admission and binding since Customs Officers are not Police Officers - Section 108 of the Customs Act and FERA. Commissioner (Ap ..... 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