TMI Blog2020 (11) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... liberate overt steps which manifests his clear intention to illegally export foreign and Indian currency. I further find that the impugned goods i.e. the foreign was being carried by the appellant without any legal documents of possession and without any approval/permission of the Reserve Bank of India, thus being prohibited and liable to confiscation. It is quite evident that the appellant attempted to smuggle the impugned currency out of India in contravention of the provisions of Customs Act - 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. The contention of the appellant, that the statements recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal No. 09/2019-CUS(AC) dated 30.08.2019 dated 10.06.2019 (hereinafter referred to as the impugned order ) passed by the Assistant Commissioner of Customs International Airport, Sanganer, Jaipur (hereinafter referred to as the adjudicating authority also). 2.1 Brief fact of the case are that the appellant having Indian Passport No. M-2529161, while going to Dubai from Jaipur on 30.07.2018 by Air India Express Flight No. IX 195 on ticket PNR- 670P21 N on suspicion was intercepted by the officers 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of foreign currency valued in INR 8,73,622/- - out of India through International Airport, Jaipur which was concealed by way of keeping it in the black coloured polythene bag between the clothes kept in blue color trolley bag marked 'TRUE'. The appellant could not succeed to smuggle the said currency notes due to alertness of the officers of Customs. Therefore, the foreign currency was seized under Section 110( 1) of the Customs Act, 1962 on the reasonable belief that the same was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chowk, Naya Bazar, Ajmer on 30.07.2018 and at the residence of Sh. Suresh Singh Rawat, Tehsil Masuda, Dolatpura (Jamola), Ajmer on 31.07.2018 and prepared Panchnama dated 30.07.2018 and 31.07.2018 respectively on the spot in presence of two independent witnesses. Nothing incriminating documents or things were recovered from both the premises as per Panchnama drawn at both the premises. 2.7 The appellant, in his statements dated 30.07.2018 stated that the currency 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 .r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 77 of Customs Act, 1962, therefore the currencies appeared liable for confiscation under 113 (d) and 113 (e) of Customs Act, 1962 and the appellant appeared liable for penal action under 114 and 114AA of Customs Act, 1962. 4. As per the investigation conducted, there were enough evidences that the appellant had been involved in smuggling of Foreign currency of valued in INR 8,73,622/-. Accordingly show cause notice dated 28.12.2018 was issued 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 ₹ 8,73,622/- and ₹ 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 foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant has produced no evidence of licit import of the impugned seized currency. The said document being a govt documents should have been got verified by the Adjudicating Authority before shifting onus on the appellant. (iii) As regards source of impugned foreign currency, the Appellant had submitted before the learned authority that he had received a monthly salary equivalent to 5000 UAE Dirham with Boarding and lodging. The salary 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 goin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to UAE Riyal. The salary certificate is again enclosed. Further, bringing of the goods, including currency, within the Customs Area is also not prohibited nor the exports of Foreign currency legally owned by Appellant is prohibited under any act for the time being in force. (vii) Kind attention of the Appellate Authority is also invited to subsection 4 of Section 6 of Foreign Exchange Management Act, 1999 which states that (Quote)- (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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strongly pleads that relying on the decision, which has been relied by the Adjudicating authority also, and without prejudice to the Appellant's prime submission that impugned currency is liable to be released to the Appellant unconditionally, if at all the said foreign currency is held liable to confiscation by the Hon'ble Appellate Authority, same may kindly be released on payment of redemption fine. It is also now a settled law that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. I have carefully gone through the facts available on record, submissions made by the appellants in their appeal memorandum's as well as the submissions made during the course of personal hearing. For better appreciation the issue involved the relevant provisions of the law in force are reproduced as follows: (i) SECTION 77. of the Customs Act, 1962 stipulates - 'Declaration by owner of baggage. - 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 . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rve Bank of India notes up to an amount not exceeding ₹ 25000 (Rupees Twenty Five Thousand Only) per person or such other amount and subject to such conditions as notified by Reserve Bank of India from time to time. 5. Prohibition on export and import of foreign currency:- Except as otherwise provided in these regu!ations, no person shall, without the general or special permission of the Reserve Bank, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, no person resident in India shall acquire, hold, own, possess or transfer any foreign exchange, foreign security or any immovable property situated outside India. 8. As per the facts available on record, it is observed that the officers of Customs, International Airport, Jaipur intercepted the appellant while he was going to Dubai from the International Airport, Jaipur on 30.07.2018 by Air India Express flight IX 195 on ticket PNR- 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the appellant had already done and carried out many of such deliberate overt steps which manifests his clear intention to commit the offence of smuggling of the foreign currency which is very much covered under the ambit of 'attempt to export' The recovery proceedings recorded under the Panchnama drawn on spot as well as the statement tendered by the appellant on the day of seizure clearly proves that he was intercepted by the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy equivalent to US$, Hong Kong $ and Singapore $ all equivalent to 70,000 found in checked in baggage - Clear case of attempt to export goods contrary to any prohibition under law laid down in Foreign Exchange Management Act (FEMA), 1999 read with Foreign Exchange Management (Export and Import of Currency) Regulations, 2000 - Appellants contention of bona fide mistake due to lack of knowledge and it being a technical and procedural 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 towar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by appellant Shri Vasant Kumar Khakkar with an 'intention' to take the same to Sharjah - Second step also completed, when Indian currency taken by appellant to Airport, a Customs notified area for his onward journey to Sharjah - Consequently, stage of preparation was over and appellant Shri Vasant Kumar Khakkar made an attempt to export the Indian currency - Confiscation of Indian currency of ₹ 22.50 lakhs under Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted by the officers of Customs when he was about to depart and he had denied having any such goods/items with him or in his baggage as is evident from Panchnama and confessional statements dated 30.07.2018. 16. I now take up the issue of penal provisions invoked in the case of the appellant involved in the instant case. 16.1 In this regard I find that it has been established beyond doubt from the records, statements 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 ..... 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