TMI Blog2023 (8) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... issued from time to time. Original Authority has referred to the RBI Circular No.45/2015-16[(1)/6(R)] dated 04.02.2016 provides the permissible limit for import of foreign exchange into India and the on the basis of that he has concluded that seized foreign currency is liable for confiscation but needs to be given an option for redemption. The Regulation 6 and RBI Circular do permit the importation of the Foreign Currency, the said importation is subject to restrictions to the extent that the appellant was required to make declaration of the Currency which he carries if the same is in excess of US$ 5000/- or equivalent. Appellant has failed to make any such declaration, and hence these currencies have been imported in contravention of the provisions of Regulation 6 read with RBI Circular and have to be held confiscable under Section 111 (d) holding the same to be prohibited - in respect of the currency which is above the value of US $ 5,000/- or equivalent needs to be confiscated by the Authorities. As importation of such currencies has been made without any declaration to the Customs or any authority the same will be prohibited and would be liable for absolute confiscation und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that he works for Western Union firm at Shohratgarh and its proprietor is his mother. He collected the aforesaid foreign currencies from foreigners for commission. He was bringing the said currencies from Taulihawa, Nepal to exchange the same from the authorized money exchanger in India. He could not produce any document related to aforesaid foreign currencies. 2.4 In view of the above, customs officers of LCS-Khunwa, seized the said foreign currency under section 110 Customs Act, 1962 on reasonable belief that the recovered foreign currency total valued at Rs.10,38,380/- (Rupees Ten Lacs Thirty Eight Thousand Three Hundred Eighty only) was liable for confiscation under section 111 of the Customs Act, 1962. As the same was brought from Nepal into India in contravention of Foreign Exchange Management Act, 1999 and Foreign Trade Policy 2015-2020 by Panchnama dated 11.03.2019. 2.5 The appellant waived the requirement of show cause notice and personal hearing on 05.07.2019 and requested for adjudication of the case. He also stated that he is ready to pay any penalties that are imposed on him by the adjudicating authority. 2.6 The matter was adjudicated by the Additional Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Section 111 (d) and confiscated the same absolutely. 2.8 Aggrieved appellant filed this appeal before the Tribunal. 3.1 I have heard Shri Shubham Agarwal learned Advocate appearing for the appellant and Shri Sarweshwar T. Khairnar Authorized Representative appearing for the Revenue. 3.2 Arguing for the appellant learned counsel submits that the appellant do not dispute any of the findings recorded by the original authority in respect of the confiscation of the seized currencies, vehicle and the penalty imposed. His only grievance is against the impugned order whereby the order allowing the redemption against fine has been converted into an order of absolute confiscation. He relies on following decisions wherein it has been held that the seized currency needs to be allowed for redemption on payment of redemption fine. Rajinder Nirula [2017 (346) ELT 9 (Bom)]. T Soundrajan [2008 (221) ELT 258 (T-Chennai)]. 3.3 Arguing for the revenue learned authorized representative while reiterating the findings recorded in the impugned order submits that: As per Notification No.9/96-Cus (NT) dated 22.01.1996, the import of the goods of third country origin t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1996 which prohibits the import of any third country goods from Nepal to India. He holds that currency being covered by the definition of goods as per section 2(22) of the Customs Act, 1962 currency also falls under the category of goods. Hence holding that as this seized foreign currency is prohibited it is liable for absolute confiscation and hold accordingly. 4.5 Section 2 (22) of the Customs Act, 1962 reads as follows: (22) goods includes (a) (b) .. (c) (d) currency and negotiable instruments; and (e) ; There is no dispute about the fact that in terms of the definition of the goods as per section 2 (22) ibid, foreign currency is included in the definition of goods. The order of Commissioner (Appeal) cannot be faulted to this extent. 4.6 However the issue for consideration is whether this foreign can be absolutely confiscated for being imported contrary to the prohibitions imposed by Notification No.09/1996-Cus (NT) dated 22.01.1996. The text of the Notification is reproduced below: G.S.R. 43 (E). In exercise of the powers conferred by Sub-Section (I) of Section 11 of the Customs Act, 1962 (52 of 1962) and in supersession of the No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) bring into India from any place outside India without limit foreign exchange (other than unissued notes), provided that bringing of foreign exchange into India under clause (b) shall be subject to the condition that such person makes, on arrival in India, a declaration to the Custom authorities in Currency Declaration Form (CDF) annexed to these Regulations; provided further that it shall not be necessary to make such declaration where the aggregate value of the foreign exchange in the form of currency notes, bank notes or traveler's cheques brought in by such person at any one time does not exceed US$10,000 (US Dollars ten thousands) or its equivalent and/or the aggregate value of foreign currency notes brought in by such person at any one time does not exceed US$ 5,000 (US Dollars five thousands) or its equivalent. 8. Export and import of currency to or from Nepal and Bhutan:- Notwithstanding anything contained in these regulations, a person may (1) take or send out of India to Nepal or Bhutan, currency notes of Government of India and Reserve Bank of India notes (other than notes of denominations of above Rs.100 in either case), provided that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits in the findings recorded by the Commissioner (Appeals) as the possession of foreign currency in India is governed by the provision of the FEMA and the RBI Circulars issued from time to time. Original Authority has stated as above has referred to the RBI Circular No.45/2015-16[(1)/6(R)] dated 04.02.2016 provides the permissible limit for import of foreign exchange into India and the on the basis of that he has concluded that seized foreign currency is liable for confiscation but needs to be given an option for redemption. 4.8 The Regulation 6 and RBI Circular referred above do permit the importation of the Foreign Currency, the said importation is subject to restrictions to the extent that the appellant was required to make declaration of the Currency which he carries if the same is in excess of US$ 5000/- or equivalent. Appellant has failed to make any such declaration, and hence these currencies have been imported in contravention of the provisions of Regulation 6 read with RBI Circular and have to be held confiscable under Section 111 (d) holding the same to be prohibited. 4.9 Thus in respect of the currency which is above the value of US $ 5,000/- or equivalent nee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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