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TMI Blog2019 (12) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The Appellate Authority failed to appreciate the quantum of the redemption fine imposed by the Adjudicating Authority on the huge amount of the seized foreign currency, which are prohibited goods. The appellate authority has reduced the redemption fine to Rs. 5 lacs arbitrarily without giving any cogent reason to substantiate the relief. The Order-in-Appeal has also set aside the penalty imposed on Sh. Virender Verma. The revision application in Para No. 11.8 states as follows "the very fact of non-compliance of the conditions of export renders such goods liable for confiscation and for absolute confiscation in the facts and circumstances of the case." 3. Personal hearing in the matter was fixed on 18-9-2019 which was not attended by the applicant. Ms. Nidhi Tomar, Proxy Counsel appeared for the respondent and requested for copy of the Revision Application. Accordingly, the next date of hearing was fixed on 10-10-2019. Sh. Ritaj Kacker, Advocate attended the hearing on behalf of the respondent. He was asked to produce a copy of show cause notice issued to applicant along with the relied upon documents. No one appeared from the applicant's side also, and no communication fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rency and negotiable instruments; and (e) any other kind of movable property. Rule 7 of the Baggage Rules, 2016 stipulates as under : "Currency. - The import and export of currency under these rules shall be governed in accordance with the provisions of the Foreign Exchange Management (Export and Import of Currency) Regulations, 2015, and the notifications issued thereunder." Section 11(2)(c) read with 11(2)(e) of Customs Act, 1962 prohibits import or export of goods for the purpose of prevention of smuggling or for conservation of foreign exchange and safeguarding balance of payments. From the evidence on record it is evident that a huge amount of foreign currency was recovered from the respondent, i.e., Tushar Kumar, on 3-7-2014 which was wrapped in black carbon paper concealed in inner lining of bag on the side walls. It is also not disputed by him that he did not declare the impugned currency to Customs officers at the airport and he did not have any documents or evidence showing lawful possession of the impugned currency. The currency so concealed by him was deliberately not declared to the proper officer of the Customs under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Customs, Delhi reported in 2003 (155) E.L.T. 423 (S.C.) = 2003 (6) S.C.C. 161, to the facts of the case, we find that, in the present case, the assessee did not fulfil the basic eligibility criteria, which makes the imported item a prohibited goods; hence, we see no reason to interfere with the impugned order. The special leave petition is, accordingly, dismissed." 8. The case File No. VIII(AP) 10/P&I/835C/Dep/2014 was called from Commissioner of Customs, IGI Airport, New Delhi. The statements recorded under Section 108 of Customs Act, 1962 and other documentary evidence available in the file have been perused. 9. It is observed that Tushar Kumar in his statement tendered under Section 108 of the Customs Act, 1962 has contended that he was carrying the impugned forex on behalf of Virender Verma for a consideration. He further contended that he had on an earlier occasion travelled along with Virender Verma to Hong Kong and carried forex amounting to $20000 for a consideration of Rs. 15,000/-. Therefore it is apparent that Tushar Kumar could not have acquired such a huge amount of forex on his own and was working on behalf of someone else. It is also observed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with the Commissioner to order absolute confiscation. He was right, the Tribunal erred." In a similar case Hon'ble High Court of Delhi in writ petition filed against G.O.I. Order No. 391-392/12-Cus., dated 9-10-2012 [2015 (320) E.L.T. 368 (Del.)], while dismissing the writ petition of the petitioner have made the following observation : "Para 8....The investigation conducted by customs and statement of passenger Shri Ram Kumar categorically reveal that said currencies did not belong to Shri Ram Kumar and he acted as carrier on behalf of somebody else....Hon'ble Supreme Court has held in the case of Surjeet Singh Chabra v. UOI - 1997 (84) E.L.T. 646 (S.C.) has observed that statement made before Customs Officer though retracted within 6 days, is an admission and binding since Customs Officers are not police officers. As such, the statement tendered before Customs is a valid evidence under law... Para 10....In view of the aforesaid position and the above discussion, we do not think that the applicant is entitled to benefit of Section 125 of the Act....... 11. In view of the above, we do not find any merit in the present application and the same is dismissed." The High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously was to Vinod Kumar Saini. It is quite apparent that the paltry fine of Rs. 2 lakhs imposed on the applicant was in view of the fact that he was not the owner." In this case also 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. 15. In view of the above discussions, Government modifies the orders passed by the lower authorities as follows : (i) Impugned currency is confiscated under Section 113(d), (e), (h) and (i) of the Customs Act, 1962. (ii) The option of redemption under Section 125 of the Customs Act, 1962 is denied. (iii) A penalty of Rs. 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. (iii) Penalty of Rs. 7 lacs (Rupees Seven lacs) imposed on Virender Verma by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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