TMI Blog2003 (10) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... length when the application under Section 130A of the Customs Act was initially heard which has, in fact, made out task simpler than it might have been in the given facts. 3.According to the case made out by the Directorate of Revenue Intelligence, Calcutta Zonal Unit, Calcutta hereinafter referred to as 'DRI' Officers of the said Directorate intercepted the respondent, Amit Kumar Saha, riding a scooter, bearing Registration No. WB-01/H1473, in from of N.R.S. Medical College and Hospital at A.J.C. Bose Road, Calcutta, on 5th January, 1998. On conducting a search, the said officers recovered and seized U.S. $ 100000 from the front dickey of the scooter. Subsequently, in response to the summons issued under Section 108 of the Customs Act, Shri Amit Kumar Saha stated, inter alia, that he had received the said currency from an unknown person at a petrol pump at Park Circus Crossing with instructions to deliver the same to a person named Raju at Airport Gate No. 2. Shri Saha is said to have stated further that on earlier occasions also he had carried U.S. currency which had been illegally procured and were meant to be exported to Bangladesh. According to Shri Saha he had agreed to car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reference application was being considered, repeated and reiterated his submission that since foreign currency was not an item notified under Section 113 of the Customs Act, 1962, mere possession of such currency would not be sufficient to indicate that the currency had been illegally procured for the purpose of improper export. Mr. Srivastava submitted that the burden of proving that the seized currency attracted the provisions of Section 113 of the aforesaid Act rested on the department and since the currency had been recovered from Shri Saha's scooter from a central location in the city itself and there being no evidence to establish that an attempt was being made to improperly export the seized currency the provision relating to confiscation under the aforesaid Act would not be attracted. 8.Mr. Srivastava urged that even in his statement in response to the summons served on him under Section 108 of the Customs Act, Shri Saha has mentioned that he was merely required to carry the foreign currency from one point, in Calcutta to another point within the same city for delivery to an unknown person. Mr. Srivastava reiterated his earlier stand that mere carrying of foreign curren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... currency to any foreign country so as to constitute an offence under Section 113 of the Customs Act, 1962. 14. Mr. Srivastava submitted that although the Court was not sitting in appeal over the order passed by 'CEGAT' on 15th February, 2001, the facts as revealed merely showed Shri Saha to be in possession of a certain amount of foreign currency which had been entrusted to him and in respect of which he did not claim any ownership. Mr. Srivastava urged that unless there was a conscious intention of Shri Saha's part to unlawfully export the foreign currency in his custody to any other country, the elements of Section 113 of the Customs Act, 1962 were not attracted and Shri Saha was entitled to receive back the foreign currency seized from him. 15. Mr. Srivastava submitted that as had been held by the Tribunal in the case of Karnataka Trading Company v. Collector of Customs (Preventive), reported in 1990 (47) E.L.T. Page 568, the essential feature of the test to determine whether an attempt or preparation to export is made, is whether the act of the concerned party was towards the actual physical movement of the goods with an intention to take them out of India. Mr. Srivastava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nouncements, the answer to the second question must be in the affirmative. 21.Appearing for the Revenue, Mr. Debal Banerjee submitted that the statements made by Shri Saha before the officials of the 'DRI' clearly indicated that the seized currency was meant for illegal exportation to Bangladesh and that Shri Saha was also familiar with the identities of the persons who were to receive the same in Bangladesh. 22.Mr. Banerjee submitted that in the absence of any specific and direct evidence about the improper importation and/or exportation or the ownership of the foreign currency the person from whose possession the seized currency was recovered could be charged only as a carrier thereof. Since Shri Saha did not claim ownership of the seized currency and was unable to provide the identity of the actual owner thereof, the Adjudicating Officer had very correctly held that Shri Saha could be charged only as a carrier of such foreign currency. 23.Mr. Banerjee submitted that as had been explained by the Hon'ble Supreme Court in different cases, it was not always possible for the department to prove all cases with mathematical precision and that the department had to base its findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26.From the statement of the case and the submissions made on behalf of the respective parties it is evident that we are called upon to answer a question which at first glance is apparently simple and straightforward, but which at second glance poses a problem which merits serious consideration. 27.It has been argued that mere possession of foreign currency does not attract the provisions of either Section 111 or Section 113 of the Customs Act, 1962 and that the same having been improperly seized was liable to be returned to the person from whose custody it had been seized without going into the question of ownership thereof. In respect of his submission reliance has been placed by Mr. Srivastava on the decision of this Court in Kantilal Somchand case (supra) and that of the Tribunal in Deluxe Exports' case (supra). 28.In our view, both the cases are distinguishable on facts as far as the present case is concerned and the principle decided therein cannot be applied in the facts of this case. 29.In the first of the two cases, in the absence of notice mandatorily required to be given under Section 124 of the Customs Act, 1962, the seizure was held to be bad and the confiscation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t lawfully entitled to possess the same, would defeat the very raison d'etre for Sections 111 and 113 of the Customs Act, 1962, and Section 8(1) of the Foreign Exchange Regulation Act, 1973. Technically speaking, Shri Saha's action of being in possession of foreign currency may not attract the provisions of either Sections 111 or 113 of the Customs Act, but that, in our view, would not render the order of confiscation of the said currency bad and/or entitle him to receive back the same, since he was not lawfully entitled to be in possession thereof. In the peculiar facts of the case we are of the view that certain presumptions are required to be drawn regarding the manner in which such a large sum of foreign currency came to be in Shri Saha's possession and the manner in which the same was to be utilised and in the face of such presumption we are convinced that the learned Tribunal was wrong in setting aside the order of confiscation and directing that the seized currency be returned to Shri Saha. 33.We make it clear that our aforesaid finding is confined to the seized currency only. 34. Since our aforesaid view effectively answers the second question in the reference, we do no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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