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TMI Blog2023 (5) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... es of value totalling INR 38,16,029/- (Foreign Currency value in INR 37,90,488/- and Indian Currency Rs, 25,541/-), in their baggage & wallets. 3.3 The Customs officials inquired from them whether they are carrying any legal documents or permission as required under provisions of Section 3 & 4 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, which was denied by them. 4. The (noticee no. 1)- Shri Bharat Hemrajani in his statement dated 06/07-08-2018 tendered under Section 108 of the Customs Act, 1962 inter alia stated that he has been running a tyre shop namely M/s Mahadev Tyres, alongwith his brother Shri Neelesh in Beawar and earned approximately Rs.50,000/- per month and having mobile no. 98296-03408; that he was going to Dubai from Jaipur by Air India Express flight No. IX-195 on 06-08-2018 alongwith his co-passenger Shri Manoj Phulwani, resident of 1/24, Hari Niwas, Kishanganj, Beawar, Ajmer, having passport no. Z-4100634. On being found suspicious the Customs Officer held him alongwith his co-passenger and inquired about having any dutiable or prohibited or restricted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,940/- and Indian Currency of Rs.19,721/-, recovered from his black coloured purse on 06-08-2018. He also admitted that he was not having any legal documents or approval/ permission of Reserve Bank of India in respect of the Foreign Currency. He further stated that he had concealed the said Currency notes in his black colored purse (Mark on it "CM"); that he did not declare the same to the customs with an intent to smuggle the same out of India illegally. On being enquired about Foreign Currency, which was recovered from Shri Bharat Hemrajani, he categorically admitted that the same was collected by him from Shri Rajkumar Bhojwani; that Shri Bharat Hemrajani will hand over the same to him after reaching Dubai; that he will hand over the same to Shri Girish Bhojwani, brother of Shri Rajkumar Bhojwani at Dubai. He admitted that in greed of money and free tour of Dubai, he had agreed for carrying the said Foreign & Indian Currency illegally. 6. In the instant case, the aforementioned persons were found illegally carrying Foreign & Indian Currencies valued in INR 38,16,029/- (Foreign currency valued in INR 37,90,488/- and Indian Currency Rs. 25,541/-) to Dubai from International Airpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India, going out of India, in terms of Section 3 & 4 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, Rule 7 of the Baggage Rules, 2016 and Section 77 of the Customs Act, 1962. The said foreign & Indian currency appeared to have been smuggled/attempted to be smuggled out of India by Shri Bharat Hemrajani and Shri Manoj Phulwani (without having any legal documents or permission/approval of Reserve Bank of India), therefore the said currency qualify to be prohibited in terms of Section 2(33) of the Customs Act, 1962 and it appeared that Shri Bharat Hemrajani and Shri Manoj Phulwani have attempted to smuggle the said currency out of India by way of concealing the same inside their bags and wallets by contravening the provisions of Section 3 & 4 of Foregin Exchange Management (Export and Import of Currency) Regulations, 2015 Rule 7 of the Baggage Rules, 2016 and Section 77 of Customs Act, 1962, therefore the currencies appeared to be liable for confiscation under 113 (d) and 113 (e) of Customs Act, 1962 and the noticees appeared liable for penal action under 114 and 114AA of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness of his father; that he has gone through the statements dated 06/07-08-2018 and-07-08-2018 tendered by Shri Bharat Hemrajani and Shri Mano Phulwani and appended his signature on it. On being asked about the statement of Shri Manoj Phulwaniwherein he had stated that the seized currency amounting to Rs.38.16.029/- was given by you (Rajkumar) and on reaching Dubai, he will have to hand over the same to your brother Shri Girish Bhojwani. He stated that though he knows Shri Manoj Phulwani since 2001, and he used to book Rail and Air Tickets through him but he has not given the sweet packets containing the Indian and foreign currencies and denied having any connection with the said statement of Shri Manoj Phulwani and the seized currencies. 12 (iii). Though Shri Rajkumar Bhojwani denied his involvement in the case of seized foreign and Indian currencies valued in INR 38,16,029/-, illegally being carried by Shri Bharat Hemrajani and Shri Manoj Phulwani, but it appeared from his statement dated 07-06-2019 tendered under Section 108 of the Customs Act, 1962, wherein he categorically admitted that he knows Shri Manoj Phulwani since 2001 and used to get his rail and air tickets booked th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the money from him for delivery to his brother Mr. Girish Bhojwani at Dubai. He further stated that he is resident of C-15, Kirti Nagar, Faz Nagar Road, Ajmer where he resides with his in-laws and his parents are residing at Ganeshpura, Beawar. That he is in Dubai since 2003 and presently working in M/s Krishna General Trading LLC at Dubai and earns about 8,400 Dirhams per month. He further stated that he knows Manoj Phulwani since 2001 and he used to book rail and air tickets through him. He has not given the sweet packets containing Indian and foreign currency and denied having any connection, as claimed in his statement by Manoj Phulwani. However, the revenue made him co-noticee alongwith the other two persons namely Bharat Hemrajani and Manoj Phulwani. The appellant in the course of personal hearing had also produced copy of his bank passbook in support of his contention. He had also contended that keeping in view his financial position and family background, he cannot be expected to have the huge amount of Indian & foreign currency as claimed by the other co-noticees. The SCN was adjudicated on contest, so far as this appellant is concerned and vide OI- O dated 30.06.2020, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. Learned Counsel further reiterated the grounds taken before the court below. 19. Learned AR for revenue relies on the impugned order. 20. Having considered the rival contentions and after perusal of records, I find that there is no evidence that the seized and confiscated foreign currency was given by the appellant to Mr. Manoj Phulwani. I further find that the statement of Mr. Manoj Phulwani is not reliable piece of evidence, as revenue have failed to comply with the mandate of Section 138B of the Act. Section 138B(b) requires that such person who made the statement has to be examined as witness in the adjudication proceedings, and if the adjudicating officer having regard to the circumstances of the case, admits the same in evidence, thereafter, such witness should be offered for cross examination by the noticee and only after such statement is tested in cross examination, the same can be relied upon. Sub-section (2) of Section 138B categorically provides that the mandate of Section 138B(1) shall so far as may be, apply in relation to any proceedings under this act, other than a proceeding before a court, as they apply in relation to a proceeding before a court. 21. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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