TMI Blog2002 (2) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... hecked baggage of one black colour Zipper Trolley which was retrieved from the Aircraft, was examined by the Customs. One Newspaper bundle was found among used clothes in the bag and upon opening the same it was observed that the bundle contained 1,90,000 US$. Mr. Halithu Ibrahim had not declared the currency to the Customs Officer at the time of his customs clearance. During investigation, he explained that the said currency was part of an amount of US $ 2,02,550 which was brought by him into India when he arrived at Delhi Airport on 30-5-97. Shri Halithu Ibrahim also produced Currency Declaration dated 30-5-97 filed by him before the customs authorities on 30-5-97. He explained that he had returned to Singapore on 5-6-97 but did not take back at that time the currency imported on 30-5-97. Instead, the foreign exchange was left with his mother at Kilakarai, Chennai. He came to India again on 16-6-97 and, during that trip he brought with him 5 kg. of gold and the foreign exchanges for paying duty on that quantity of gold. One person at Singapore gave the gold to him requesting him to hand over the same to one businessman at Madras. After Customs Clearance of the gold he gave it to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had confirmed the appellant's explanation. The import of the currency through Delhi Airport has been confirmed by the Customs Authorities as well as the Currency Declaration Form, produced by the appellant. The appellant's mother had also confirmed his statement during the investigation. The learned Counsel, therefore, submitted that the export of the currency was entirely according to law and that there was no violation of law. He has also contended that there was no violation of Section 77 of the Customs Act, as that section related to import baggage only. He submitted that, if at all, the violation was of a technical nature, which did not warrant absolute confiscation of currency. He also contented that absolute confiscation was beyond the scope of the show cause notice itself inasmuch as it had been accepted in the show cause notice that the currency under export was the unspent portion of imported currency. The learned Counsel, further, submitted that even if the currency is held to be liable to confiscation, the appellant should have been given an opportunity to redeem the same on payment of a redemption fine. This submission has been made based on the decision of this Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , any foreign currency imported by a passenger in excess of US Dollar 1,000 is to be declared in a Currency Declaration Form at the time of arrival in India to the Customs Authorities. The unspent portion of the currency could be exported at the time of the passenger leaving the country, along with surrender of the Currency Declaration Form. This permission for export can be held as applicable only to return from the arrival during which the import of currency was made. In the appellant's case, an import of currency was made during his arrival on 30-5-1997. Currency Declaration Form was also filed. The appellant could have exported the unspent portion of the currency so declared when he returned on 5-6-97, upon surrender of the Currency Declaration Form, which he did not do. The relaxation in respect of passengers is not a liberty for them to import currency, store in India and take it out in instalments on return from subsequent visits. In any event, a claim regarding re-export has any validity only if the currency is declared at the time of return and the Currency Declaration Form surrendered. The appellant did not declare any currency at the time of his customs clearance on 18-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggling. The appellant has clearly violated the provisions regarding declaration of contents of baggage under Section 77 of the Customs Act. He also stuck to his course even upon questioning. The attempted smuggling of currency came to be detected only on interception and examination of his baggage. Such conduct cannot be treated as a lapse or an unintentional omission. The currency involved is a large sum, when it is viewed as the amount brought by a passenger. From the facts and attendant circumstance, the highest degree of probability is that the appellant is a carrier used by others. His explanations lack all bona fides. 7.The appellant's contention is that the impugned order has gone beyond the show cause notice. The show cause notice had specifically charged the appellant with violation of Section 77 of the Customs Act and had proposed confiscation of the currency and imposition of penalty. The impugned order has not gone beyond the scope of the show cause notice. 8In view of. what has been stated above, the confiscation of the foreign currency in the impugned order is confirmed. We do not consider this to be a fit case deserving an opportunity to redeem the foreign curren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1973 and whether the confiscation of the entire imported US $ 1,95,000/- is justified and further, whether it is proper to impose penalty of Rs. 70,000/- under Section 114(i) of the Customs Act. 13It is. alleged in the show cause notice itself that appellant had brought with him the said foreign currency and had filed the declaration with the customs officers in Currency Declaration Form as prescribed in the Foreign Exchange Regulation Act, 1973. The party's contention is that the same currency amounts which were described and declared to the extent of the amounts which were stated therein were taken out with him except to the extent utilised. It is the contention of the appellant that declaration dated 30-5-97 is required to be accepted for the purpose of taking back the said currency, although which had not been disclosed till a search took place. It is also the contention of the party that declaration was filed on 30-5-97 and the money had been left with the appellant's mother. It had been stated that appellant was a respectful citizen working in the Singapore Police Constibulary and that the money was of his hard earned one and not utilised for any smuggling purpose. It is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that there was no ban on passengers bringing US $ to the extent provided in the notification. Further reliance was made on the judgment of West Regional Bench rendered in Boda Singa Rajeshwar v. Collector of Customs - 1991 (56) E.L.T. 810 (T) by which the Tribunal held that bringing of foreign exchange is not prescribed. The only requirement is to fill the Currency Declaration Form duly attested by the customs at the time of landing if the total foreign exchange carried exceeds US $ 1,000 per individual. The findings recorded in para 6 of the above judgment is extracted below :- With"6 this undisputed factual position, I proceed to consider the appeal. The main thrust of the appeal is his bona fides. This is revealed from the aforesaid undisputed factual position. He is not an Indian citizen or N.R.I, but a citizen of Mauritius working as attorney in Durban. He has come to India with his family for sight seeing. All the details of travellers cheques carried by him was endorsed in the passport, which is open to scrutiny by the Customs Officers. There was no deliberate intention in non-declaration. The currency carried is well within the prescribed limit. Apart from all these f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ines and penalties in terms of value of foreign exchange not declared. Though technically and legally, the travellers' cheques not declared are liable for confiscation for non-declaration, in a case like this, where the undisputed factual position reveals the bona fides, no penalty is called for [which the Collector (Appeals) has rightly set aside] and even the fine imposed may be a token one. I, therefore, propose to confirm a token fine of only Rs. 1,000/- and grant consequential relief. Accordingly, the order of the Collector (Appeals) is modified to this extent and redemption fine is reduced to Rs. 1,000/- (Rupees one thousand only). Appeal is disposed of in the above terms." The Tribunal has clearly held that imposition of penalty or fine is not called for in the circumstances of the case. This judgment has got a clear bearing to the present proceedings. The Mumbai Bench, likewise in the case of Felix Dores Fernandes v. CC., ACC, Mumbai - 2000 (118), E.L.T. 639 again held that undeclared foreign currency found with appellant on his departure to Dubai, although its confiscation is sustainable but same is required to be redeemed on payment of fine in terms of Sections 121 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5/- is shown against Raju. Although Raju was never traced, these entries show that he was not a mythical person and therefore this diary and paper also act as corroboration to the inculpatory statement. 6.We, therefore, find that the orders of the Commissioner of confiscation of the currency are correct in law. 7.Shri Kantawala relies upon a number of judgments given by the Government of India in which the currency in similar circumstances was permitted to be redeemed. We have seen the judgments. In all cases of smuggling in baggage where the original adjudication is by the officers subordinate to the Commissioner, the second appeal lies to the Government of India. 8.Shri Deepak Kumar submits that the currency which is not lawfully acquired would become prohibited goods and therefore there is no need for offering a redemption. He however fairly concedes that to his knowledge these orders of the Government of India have not been challenged further. Shri Kantawala refers to order No. 298/97, dated 14-3-1997. In this case undeclared currency on arrival was held to be liable to confiscation but was released on payment of fine of about 35%. Although the Government of India's order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatute; that is to say, cases which are not within the actual words of the statute cannot be brought within the statute by consideration of its governing principle or intention. The Apex Court in the case of CIT v. Elphinstone Spinning Weaving Mills Co. Ltd., AIR 1960 SC 1016; CIT v. Shazada Nand And Sons, 60 ITR 392 (S.C.); Shree Sajjan Mills Ltd. v. CIT - 156 ITR 585. 603 (S.C.) has held that if the words of the taxing statute fail, then so must the tax. The courts cannot, except rarely and in clear cases, help the draftsman by a favourable construction. It has been held by the Apex Court in CIT v Ajax Products Ltd. - AIR 1965 SC 1358; CIT v. Hasmath Unissa Begum - 176 ITR 98 (S.C.) that equally important is the rule of construction that if the words of a statute are precise and unambiguous, they must be accepted as declaring the express intention of the legislature. It has been held by the Apex Court again in the case of Mangalore Chemicals Fertilizers Ltd. v. Dy. Commissioner reported in 1991 (55) E.L.T. 437 (S.C.) that if the words are plain and clear and directly convey the meaning, there is no need for any interpretation. The choice between a strict and a liberal constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of persons and not for others. There is no discrimination made in the notification and it is not for the Tribunal to interpret the notification or an order in any other term, other than the words which are already there. 18There is. also no allegation made by Revenue or evidence produced that appellant had raised other foreign exchange from the Hawala transaction or from any other source for taking it back either in the first trip or that he had not left the currency notes with his mother's custody, which had been brought on the first occasion in the country. Therefore, while disagreeing with my brother, I am of the considered opinion that the impugned order which has not considered all the plea as raised vitiates the principles of natural justice. Further, the order is beyond the scope of the allegation made in the SCN and the finding being unsustainable. I am of the considered view that the matter is required to be remanded to the, Commissioner (Airport) Chennai for reconsideration of the pleas raised by the appellants and for considering release of the seized currency on payment of redemption fine in the light of Tribunal judgment already noted. Sd/- (S.L. Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India via Delhi on 30-5-97 and brought currency worth US $ 2,20,550/- and obtained currency declaration form on 30-5-97 from the Custom authorities at Indira Gandhi International Airport, Delhi. He left Madras for Singapore on 5-6-97 but did not take back at that time the foreign currency imported on 30-5-97. Instead, the same was left with his mother at Kilakarai, and again came back to India on 16-6-97 and landed at Madras and went to his native place. He took the foreign currency amount which was entrusted with his mother for safe custody and came back to Madras. His mother stays in Kilakarai near Rameswaram. Since he could not buy any property, he took this money when he was boarded IA Flight IC 555 on 18-6-97. 25.Ld. Advocate invited my attention to the order recorded by Hon'ble Member (Judicial) wherein he has recorded that the foreign currency should have been released on payment of redemption fine as held by Mumbai Bench in the case of Boda Singh Rajeshwar v. CC [1991 (56) E.LT. 810 (T)] and in the case of Felix Dores Fernandes v. CC, ACC, Mumbai [2000 (118) E.L.T. 639] wherein it was held that the currency is liable to be released on payment of redemption fine in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein the Hon'ble Apex Court has held that absolute confiscation of goods by Collector without considering question of redemption on payment of fine although having discretion to do so, the matter was remanded to Collector for consideration of exercise of discretion for imposition of redemption fine. Ld. Advocate further invited my attention to para 5 of the judgment of this Bench in the case of M.S.P. Rajes v. CC, Madras [1987 (29) E.L.T. 131 (Trib.)] wherein the Tribunal has held the non-declaration is a technical breach and the currency was ordered to be released. Since the adjudication is beyond the scope of the show cause notice, there is violation of principles of natural justice and the order is therefore vide ab initio and is required to be set aside. It was in this background that the Hon'ble Member (Judicial) had directed that this order should go back to the original authority for de novo consideration. He has also given a number of judgments to support the case. 27.The ld. Advocate also invited my attention to Notification No. FERA 81/89-RB, dated 9th August 1989 as amended up to 9th March, 1999 by Notification FERA No. 192/99-RB. He submitted that a person has only to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rupee notes declared above, they should retain this form with them for producing to the Customs at the time of their departure to enable them to take with them the unutilised balance". 28.Appearing on behalf of the Revenue, ld. DR Shri A. Jayachandran argued that the appellant had taken the defence on the ground of Currency Declaration Form No. 30502, dated 30-5-97 at Indira Gandhi International Airport, Delhi, but the appellant has not only failed to produce Currency Clearance Certificate, but has also chosen to mis-declare that he was only having US $ 5,000/- in the baggage. He submitted therefore, that the appellant had some mala fide intention to smuggle the currency. Ld. DR also argued that the note attached to the Currency Declaration Form is having statutory force since by producing the copy of the Declaration Form, the appellant can co-relate imported currency with the currency to be exported, otherwise the undeclared foreign currency is liable to be confiscated. Therefore, he submitted that the plea taken by the ld. Advocate appearing on behalf of the appellant that Currency Declaration is not having statutory force, is not correct. He further argued that non-declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y ld. Counsel for the appellants and the DR appearing for Revenue during the course of personal hearing and from the perusal of the records, it is found that Mr. Halithu Ibrahim, S/o Shri Seeni Mohamed, holder of Singaporean Passport was intercepted at Madras Airport while proceeding to the above said security hold area after immigration and Customs clearance, by Customs officers in plain clothes and on questioning about the amount of foreign currency carried by him, he replied that he had only US $ 5000/- in 100 denominations and produced the same to the Customs officers. Thereupon, he was taken to the aforesaid visa desk room and there his checked-in baggage of one black colour zipper trolley bearing baggage tag No. IC-22020 retrieved earlier from the aircraft by Mr. Alim was examined by the said Customs officers and one newspaper bundle was found among the used clothes. The above bundle was then examined by the Customs officers and the same was found to contain 1784 numbers of US dollars in 100 denominations and 232 numbers of US dollars in 50 denominations thus totally US dollars 1,90,000/-. When the above US dollars 1,90,000/- was found by the Customs officers in the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion where such import/export is of a prohibited item under this or any other law for the time being in force but the adjudicating authority shall, in the case of any other goods, give to the owner of the goods or where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit. The undeclared foreign currency is no doubt liable to be confiscated, but since the import of the currency by a passenger especially by a NRI, is not prohibited, the adjudicating authority has no discretion but to allow the goods to be released on payment of redemption fine. This was also the view of the Co-ordinate Mumbai Bench in the case of Felix Dores Fernandes v. CC, ACC, Mumbai (supra) wherein it has been held that undeclared foreign currency found with appellant on his departure to Dubai, although its confiscation is sustainable but the same is required to be released on payment of fine in terms of Section 125 of the Customs Act, 1962. I am, therefore, in agreement with the order passed by ld. Member (Judicial) that the matter is required to be remanded to the Commissioner (Airport ..... X X X X Extracts X X X X X X X X Extracts X X X X
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