9911796707
TMI Blog2024 (7) TMI 1413X X X X Extracts X X X X X X X X Extracts X X X X ..... nationally and internationally. Petitioner claims that in the year 2018, he had to urgently travel to London (and thereafter to Baltimore, USA) for attending certain business meetings and in this regard, services of the SEMPL were availed for logistical facilitation. SEMPL deputed one Mr. Amit Bali to assist the petitioner in this regard and on 20.08.2018, when the petitioner was travelling by flight being BA No.256, he was off-loaded by the Customs Authority. He was informed that his travel assistant Mr. Bali was caught with undeclared foreign currency being 50,049 USD, 30,745 Euros and 25,030 Pounds, cumulatively valued at INR 81,01,421/-. It was further informed that in his statement, Mr. Bali had disclosed that the seized currency belonged to the petitioner. The petitioner, in his statement before the Customs Authority, denied that the said currency belonged to him and further stated that he was unaware that Mr. Bali was carrying such currency. He further stated that he used to carry cards to meet his personal expenses during the foreign trips. 3. Upon investigation and based upon 62 documents including statements of several witnesses, a show cause notice dated 17.07.2019 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structions issued thereunder; (iv) The foreign currencies equivalent to Rs. 21,35,25,172/- (Rs. Twenty One Crore Thirty Five Lakh Twenty Five Thousand One Hundred and Seventy Two Only), illegally carried out of India by Mr. Amit Bali through the Multi-currency Forex Travel cards issued in the name of other employees of M/s SEMPL and used for meeting the expenses of Mr. P. K. Munjal abroad, as discussed supra, should not be held liable to confiscation under Section 113 (d) of the Customs Act, 1962 for violations of the provisions of the Customs Act, 1962 read with provisions of Foreign Exchange Management Act (FEMA), 1999, Rules, Regulations and Instructions issued thereunder; (v) The foreign exchange equivalent to Rs. 13,90,20,897/- exported out of India by Mr. Amit Bali, over and above the prescribed limit of USD 2,50,000, in the financial years 2018-19, 2017-18, 2016-17, 2015-16 and 2014-15, as detailed supra, in violation of Rule 5 of the Foreign Exchange Management (Current Account Transactions) Rules, 2000 dated 3rd May, 2000, should not be held liable to confiscation under Section 113 (d) of the Customs Act, 1962 read with provisions of the Foreign Exchange Management Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view Clause 15.9.2 of the Customs Manual, 2023, the prosecution and impugned complaint could not be continued. It was further contended that as per Section 2 (3A) of the Customs Act, 1962, a beneficial owner can only be such an individual either on whose behalf some goods are imported/exported or who exercises effective control over such goods. However, in the present case, there is no material on record to show that the goods (in this case the foreign currency/exchange) were either being carried on behalf of the petitioner or that the petitioner had effective control over them. 9. Learned SSC for the respondent, on the other hand, has resisted the petition by contending that the same is premature and devoid of merits. He contended that the impugned complaint came to be filed for offence under Section 135 Customs Act, after due investigation and collection of evidence. It was further contended that Clause 15.9.2 of the Customs Manual, 2023 provides for continuation of criminal proceedings in situations even if the alleged offender has been exonerated in adjudicatory proceedings and that the effect of such exoneration would depend upon the nature of findings. In this regard, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed to be continued. This stems from the nature of the criminal prosecution and the higher standard of proof necessitated in such situations. 12. At the outset, it must be noted that the impugned complaint is based upon the same factual matrix/situation as was under consideration in the adjudicatory proceedings and which had resulted in the exoneration of the petitioner. Thus, the prime question that this Court needs to answer is whether the exoneration of the petitioner was on technical grounds or based upon merits. 13. The CESTAT, while considering the material placed before it, had observed that:- "xxx 25. Girijesh Kashmira, Cashier of SEMPL, in his statement made on 28.09.2018 stated that it he had handed over the foreign currency to Amit Bali. He clarified that the said foreign currency was taken out from the safe kept in the office and he had received instructions from K.R. Raman to give the foreign currency to Amit Bali. 26. The appellant, in his statement recorded on 20.08.2018, stated that he had meetings with business clients at London, after which he was scheduled to go to Baltimore for business meetings. He further stated that Amit Bali assisted him duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant treating the appellant as a 'beneficial owner', cannot be sustained. xxx" 14. On the issue raised, the relevant observations of the Division Bench are extracted hereunder:- "xxx 18. That takes us to the principal question, namely of whether the Appellate Authority was justified in invoking the principles enshrined in Section 2 (3A) and whether the respondent could justifiably be held to be the beneficial owner of the currency which was confiscated. 19. The CESTAT in its judgment has found on facts that the respondent was undertaking the travel by virtue of being the Chairman and Managing Director of Hero MotoCorp. Ltd. and was proceeding on an official engagement. Undisputedly, the journey in the course of which the seizure was affected was not a personal visit of the respondent but was to attend to various business meetings and events for and on behalf of HMC and which meetings and events were being managed by SEMPL. It is in the aforesaid background that the Tribunal has come to the conclusion that the respondent could not be held to be the beneficial owner of the seized currency. 20. We further note from the various statements made in the course of investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween them were on arms-length basis, duly audited by the statutory auditors of HMC. Insofar as the relation between the petitioner and SEMPL was concerned, it was noted that the petitioner neither had any shareholding nor any financial interest in SEMPL (either directly or indirectly) and was also not a Director in SEMPL inasmuch as there were only three Directors: Mr. Hemant Dahiya (Managing Director), Mr. Herbart Mohan Spatt and Mr. Abhishek Mehra. Further, in his statement, Mr. Hemant Dahiya had clearly stated that it was one Mr. K.R. Raman, who determined the expected expenses and upon whose directions, the aforesaid amount was given to Mr. Bali. Though initially, Mr. Bali had stated that the foreign currency belonged to the petitioner, however, later he backtracked from the same and stated that the foreign currency was for the use of the petitioner. However, it must be noted that apart from the aforesaid statement of Mr. Bali (which has been significantly changed since the time of his statement), nothing has been placed on record to show that the foreign currency was being carried on the instructions or for the benefit of the petitioner. Further, it has already been conceded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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