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TMI Blog2020 (11) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers of Customs, International Airport, Jaipur, while passing through departure gate, the officer of Customs inquired from him whether he was carrying any dutiable or restricted or prohibited goods/ items in any form in his baggage, he denied having such items. The officers decided to conduct his personal search and thorough examination of his baggage, therefore served upon him a Notice under Section 102 of the Customs Act, 1962 seeking his consent for the search proceedings. He gave his consent for personal and baggage search before a Gazetted officer of Customs. Personal search of Sh. Suresh Singh Rawat was conducted by the Customs Officer, before a Gazetted Officer Sh. Kailash Chandra Gaur, Superintendent (AIU), International Airport, Jaipur and in presence of two independent witnesses. During personal Search of Shri Suresh Singh Rawat, nothing incriminating was found. Thereafter, the customs officers decided to examine his baggage (one blue colored trolley bag marked 'TRUE' on it) thoroughly. On examination of the said blue colored trolley bag marked 'TRUE' on it, one black coloured polythene was recovered which was kept between the clothes appeared having pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being smuggled out India of by way of concealment of the same by the appellant in contravention of the provisions of Foreign Exchange Management (Export and Import or Currency) Regulations, 2015 read with provisions of Foreign Exchange Management Act, 1999, therefore the same was liable for confiscation under Section 113 of Customs Act, 1962. The blue coloured trolley bag marked 'TRUE' having 110 commercial value, which was used for concealment of the currency, was also seized under Section 110( 1) of the Customs Act, 1962 on the basis of reasonable belief that the same was liable for confiscation under Section 119 of Customs Act, 1962. Print out of the Air Ticket & Boarding Pass from Jaipur to Dubai recovered from the appellant were also resumed under Section 110(3) of the Customs Act, 1962 for the purpose of investigation and evidence. 2.5 In compliance of Summons dated 30.07.2018 issued by the Superintendent of Customs, International Airport, Jaipur, Shri Suresh Singh Rawat in his statement dated 30.07.2018, tendered under Section 108 of the Customs Act, 1962 inter alia stated that:- (a) He has passport Number M-2529161. He has work Visa bearing Number 1607703 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urrency notes were given to him by Shri Madan Tawani of Ajmer for further delivery at Dubai to the person as per his direction on reaching at Dubai. Therefore, Shri Madan Tawani S/o Sh. Ram Gopal Tawani R/o Laxmi Chowk, Naya Bazar, Ajmer was summoned on 10.09.2018 to appear on 20.09.2018 to tender his statement under Section 108 of the Customs Act, 1962 alongwith to produce (i) copy of passport (ii) copies of Bank Account Statement of all the accounts maintained by him for the last 3 years (iii) copies of ITR for the last 3 years. Sh. Madan Tawani vide letter dated nil (received in the office on 26.09.2018) informed his inability to appear on the said date and requested to give further date after 15 days. On considering his .request, further summon was issued on 02.10.1018 to appear on 12.10.2018. 2.8 Sh. Madan Tawani appeared before the Superintendent of Customs on 12.10.2018 in compliance of summons dated 02.10.2018, and tendered his statement under Section 108 of the Customs Act, 1962. Sh. Tawani in the statement dated 12.10.2018 stated that he works in his wife's (Smt. Premlata Tawani) firm M/S Shri Sumanglam Store, Ajmer which deals in electronic items; the firm is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued to the appellant. Taking into account the written reply furnished by the appellants and submission made during the course of personal hearing, the case was adjudicated wherein (a) Foreign currency of value in INR 8,73,622/-. Which was recovered and seized from the appellant was confiscated under Section 113(d) and 113(e) of the Customs Act, 1962 ; (c) The blue coloured bag which was used for concealment of the currency was confiscated under Section 119 of the Customs Act, 1962; (d) Penalty of Rs. 8,73,622/- and Rs. 20,000/- was imposed upon the appellant under Section 114 and 114AA of the Customs Act, 1962; respectively. 5. Being aggrieved with the impugned order, the appellants filed this appeal inter alia on the following grounds amongst others: (i) That the Department has built up its entire case on the confessional statement dated 30.07.2018, recorded of the Appellant on the day of impugned seizure of foreign currency. However, again the said statement has not been accepted in entirety but discarded as untrue in part. Part acceptance and part denial of the statement without any corroborative evidence is not permissible in law. In the statement dated 30.07.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate from the employer was also produced before him. About self presumed apprehension of the adjudicating authority that "there arises another question as to how and why a person would keep foreign currency for two years in India and why it was not converted to Indian rupees during this period for proposed purpose of building a house and how it was going to be spent", the Appellant humbly submits that why the F.C. had been kept had already been explained to the adjudicating authority (for construction of house). Regarding why the same was not converted to Indian rupees, was simply because conversion rate was anticipated to increase- just like equity shares are kept for long for anticipation of rise in Share value. About how it was going to be spent, same could any time be got converted into Indian Rupees through authorized money changers and spent for the desired purpose. (iv) The Hon'ble Appellate Authority may, therefore, appreciate that the legitimate possession of impugned foreign currency has been denied by the adjudicating authority on flimsy and trivial grounds. Besides merely negating ownership of the Appellant, the learned authority has not determined/ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote)- "(4)- A person resident in India may hold, own, transfer or invest in foreign currency, foreign security or any immovable property situated outside India if such currency, security or property was acquired, held or owned by such person when he was resident outside India or inherited from a person who was resident outside India. " Thus there was no impropriety, if the Appellant was holding and carrying the impugned amount of currency being an income genuinely earned by him. The LAA has grossly erred in confiscating the impugned currency absolutely. The said order therefore requires to be set aside. (viii) That the Adjudicating Authority has failed to appreciate the Appellant's submission that though there is no provision in the Law which prescribes conditions or denies or prohibits carrying own earned foreign currency of whatever amount, while going to a foreign destination, however, parallel situation can be drawn from following provisions of Law: Regulation 7(3) of Foreign Exchange Management (Export & Import of Currency) Regulations, 2015 stipulates that- (Quote)- "Any person may take out of India- foreign exchange possessed by him in accordance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in such cases the amount of redemption fine should not exceed 10% and penalty more than 5%.The LAA has also relied on the decision in the case of Abubaker Haji Qasim V. Commissioner2018 (361) E.L.T. A71 (Bom.) to hold that absolute onfiscation of foreign currency attempted to be smuggled is fully justified. With all due respect, Appellant submits that the adjudicating authority's reliance on the above decision of Hon'ble Bombay High Court to hold that absolute confiscation of foreign currency attempted to be smuggled is fully justified, is gross mis-interpretation of the said decision. The* portion quoted by the adjudicating authority was the subject matter before the Hon'ble Court for their consideration. The Hon'ble Court in the said matter in fact admitted Customs Appeal No. 90 of 2016 filed by Abubaker Haji Qasim against the CESTAT Final Order No. A/1446/2014-WZB/CIV(SMB), dated 14-11-2014. Thus, the Hon'ble Appellate Authority may appreciate that the adjudicating authority's impugned order is based on misquoted decisions of Hon'ble High Court, New Delhi and the Hon'ble High Court, Bombay. For this reason, same deserves to be set aside. (x)&n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. - The owner of any baggage shall, for the purpose of clearing it, make a declaration of its contents to the proper officer." (ii) SECTION 113. of the Customs Act, 1962 stipulates - "Confiscation of goods attempted to be improperly exported, etc. - The following export goods shall be liable to confiscation: (a)...... (d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; (e) any goods found concealed in a package which is brought within the limits of a customs area for the purpose of exportation;...." (iii) As per Rules 7 Baggage Rules, 2016 "7 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. " (iv) Foreign Exchange Management (Export and import of currency) Regulations, 2015 3. Export and Import of Indian currency and currency no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , export or send out of India, or import or bring into India, any foreign currency. 7. Export of foreign exchange and currency notes:- (1) An authorised person may send out of India foreign currency acquired in normal course of business, (2) Any person may take or send out of India, - a. Cheques drawn on foreign currency account maintained in accordance with Foreign Exchange Management (Foreign Currency Accounts by a person resident in India) Regulations, 2000; b. foreign exchange obtained by him by drawal from an authorised person in accordance with the provisions of the Act or the rules or regulations or directions made or issued thereunder ; c. currency in the safes 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, - a. foreign exchange possessed by him in accordance with the Foreign Exchange Management (Possession and Retention of Foreign Currency) Regulations, 2015; b. unspent foreign exchange brought back by him to India while returning from travel abroad and retained in accordance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 670P21N, on suspicion while he was passing through the departure gate, the officers inquired from him whether he was carrying any dutiable or restricted or prohibited goods/items in any form in his baggage, he denied having any such goods/items. However, thorough examination of his baggage resulted in the recovery of foreign currency valued at INR 8,73,622/- kept concealed in blue coloured trolley bag marked 'TRUE' . On being inquired in respect of any legal documents or any approval I permission of the Reserve Bank of India to carry the currency as per provisions of Section 3 of Foreign Exchange Management Act, 1999 read with regulation 3, 5 and 7 of the Foreign Exchange Management (Export and Import of Currency) Regulations, 2015, the appellant denied having any legal documents or any approval I permission from the Reserve Bank of India. In his statements, he informed that said Foreign currency had been given to him by a person named Madan Tawani to deliver in Dubai against mutually agreed consideration. Thus it is quite evident that he had agreed to carry the currency notes in the greed of money. I find that there is no dispute with regard to the concealment and recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers of Customs at the International Airport on 30.07.2018 while he was going to for Dubai by Air India Express flight IX 195 on ticket PNR- 670P21N .and that he had improperly attempted to export the foreign and Indian currency by bring the same in a concealed manner in his baggage within the Customs area as well as by taking many such deliberate oven steps which manifest his clear intention to illegally take the foreign and Indian currency out of India in contravention of the prohibition imposed by the Customs Act, 1962 as well as other laws in force. 10. Further as per facts available on records, I find that the appellant had improperly attempted to export the foreign currency totally valued at on 30.7.2018 i.e. at the time of his departure, by bring the said impugned goods in Customs Area as well as by taking many such deliberate overt steps such as (i) booking of Air ticket PNR670P21N for 30.07.2018 by Air India Express flight IX 195 to go to Dubai; (ii) His carrying the said foreign currency in a concealed manner in his baggage for avoiding detection in X-ray at the airport; (iii) His name was very much in the Passenger Air Manifest evidencing that he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral lapse, not accepted - No evidence brought forth by appellant to establish legal possession of foreign exchange by appellants - Appellant's plea that currency belongs to his brother, not accepted as such claim made after nine years of incidence - Even appellants brother brought such huge currency to India without declaring the same at the time of import, currency liable to confiscation under Section 113 of Customs Act, 1962 - Goods liable to confiscation under Sections 113(d) and 113(e) ibid - Appellants changing/retracting confessed statement was a deliberate act of commission - Appellants confessed statements corroborated by some travel agents by stating that one person namely Shri Wali Mohammed was purchasing tickets for appellant as well as towards purchase of foreign currency - Huge amount of foreign currency being prohibited under FEMA Regulations, option to redeem the same not available under Section 125 ibid - Smuggling not established through confessional statements only but through series of facts and events viz. non-declaration, detection of currency in a packet contained in checked in baggage, repeated statements of appellants, circumstantial evidence of travel a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 113(d) of Customs Act, 1962 justified. ' 12. It is quite evident that the appellant attempted to smuggle the impugned currency out of India in contravention of the provisions of Customs Act, as well as other referred laws. Therefore, in view of the provisions of law and the ratio of the judgments referred above, I find that the Export of Foreign Currency is not allowed by an Indian resident or foreigner residing in India, going out of India, in terms of Section 3 & 4 of the Foreign Exchange Management Act, 1999 read with regulation 3, 5 and 76 of the Foreign Exchange Management (Export and Import of Currency) Regulation, 2015, Rule 7 of the Baggage Rules,2016 and Section 77 of the Customs Act, 1962. I therefore, hold that the impugned goods alongwith other goods recovered and seized from the appellant on 30.07.2018 at the International Airport Jaipur have been correctly confiscated under Section 113(d), 113(e) and 119 of the Customs Act, 1962. 13. I find that the contention of the appellant, that the statements recorded have been partly accepted and the part wherein he had mentioned the name of Shri Madan Tawani as the real owner of the currency has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements and circumstantial evidences that the appellant played a specific and vital role in the attempted smuggling of foreign currency in contravention of the provisions of law in force. On going through the facts of the case, I am of the firm opinion that he knowingly and intentionally attempted to illegally export the foreign and Indian currency at the time and date of his departure on 30.07.2018 by bringing the same in customs area and taking many such deliberate overt steps which manifest his clear intentions to indulge in such illegal activity. I find that Section 114 of the Customs Act, 1962 stipulates that 'Penalty for attempt to export goods improperly, etc. - Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act, shall be liable to penalty'. I find that the appellant was actively involved in the attempt to illegally export the impugned goods recovered and seized from his possession, which he had full knowledge were liable to confiscation under Section 113 of the Customs Act, 1962, Thus by carrying such an act in co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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