9911796707
TMI Blog1992 (6) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... ri V.S. Thiageswaran, ALA. appearing for the respondent also confirms deposit of the penalty. 2. Briefly stated, the facts of the case are that the Officers of the Enforcement Directorate conducted search in the appellant's premises on 21-10-1985 and seized US dollars 500 in travellers' cheques. Statement of the appellant was recorded on that day in which he stated that he was issued the FTS by the RBI under FTS No. 208 of 1985 dated 25-1-1985 for his visit to Sri Lanka and Singapore, that he went to Singapore and Sri Lanka but he did not spend the FTS allowance as his expenses were met by his friends and relatives and that he was to utilise the said unutilised foreign exchange for his future trip. As the appellant had failed to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have met the ends of justice and that the confiscation is a punishment which is harsher than warranted under the circumstances. 3. I have heard the counsel of the parties and perused the records of the case. 4. The counsel appearing for the appellant submits that while the basic facts leading to the said contravention are not disputed, confiscation of US dollars 500 in travelling cheques was not legally warranted as the source of acquisition of US $ 500 was legal and the only fault which was committed by the appellant is that he has failed to return the same to an authorised dealer within the prescribed period and that the said amount was not intended for sale in the market and was kept only for future trip. The counsel for the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that the foreign exchange holdings, if any, of the person committing the contravention or any part thereof, shall be brought back into India or shall be retained outside India in accordance with the directions made in this behalf." 7. As it would appear from the above, provisions of section 63 would be attracted if the following conditions are fulfilled: (i) any currency, security or any other money or property to be confiscated is found to be currency, security or any other money or property in respect of which the contravention has taken place; (ii) such currency, security or any other money or property can be confiscated by a Court or Adjudication Officer, as the case may be. . 'if it or he thinks fit' to confiscate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the factum of contravention which is relevant only as regards the first condition mentioned above. In other words, the above reasoning advanced by the Adjudicating Officer satisfies the first condition only and not the second condition mentioned above. The expression 'if it or he thinks fit indicates that confiscation is not automatic. After the first condition is satisfied, i. e., after a property is found to be involved in contravention of the provisions of the Act, Adjudicating Officer to apply his mind as to for what reasons it is considered fit by him to confiscate property in addition to the fine which he may impose for contravening a provision of the Act. Mere establishment of the factum of contravention would not attract appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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