Custom, Excise & Service Tax Tribunal
Harchandani Choith Nanikram vs Commissioner Of Customs (Csi Airport), ... on 30 March, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO.
Appeal No. C/941/08
(Arising out of Order-in-Original No. COMMR/PVR/ADJN/20/08 dt.14/2/2008 passed by the Commissioner of Customs. CSI Airport, Mumbai )
For approval and signature:
Honble Shri Ramesh Nair, Member (Judicial)
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1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
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Harchandani Choith Nanikram
:
Appellant
VS
Commissioner of Customs (CSI Airport), Mumbai
:
Respondent
Appearance
Shri Sanjay Agarwal, Advocate for Appellant
Shri D.K. Sinha, Asstt. Commr. (A.R) for respondent
CORAM:
Honble Shri Ramesh Nair, Member (Judicial)
Date of hearing : 30/03/2016
Date of pronouncement : 01/08/2016
ORDER NO.
Per : Ramesh Nair
This appeal is filed by the Revenue against Order-in-Original No. COMMR/PVR/ADJN/20/08 dt.14/2/2008 passed by the Commissioner of Customs. CSI Airport, Mumbai.
2. The fact of the case is that the appellant Shri Harchandani Choith Nanikram while travelling to Singapore by Jet Airways Flight on 26.3.2007 was intercepted by the officers of Air Intelligence Unit of Customs at Chhatrapati Shivaji International Airport, Sahar, Mumbai. Examination of his pouch and wearing clothes, it resulted recovery of undeclared currencies as detailed below:
Indian - Rs.17000/-
US $ - 2400
British Pound - 1060
Euro - 62800
UAE Dirhams - 1000
Qatar Rial - 1000
Hong Kong Dollars 6000
Collectively equivalent to Indian Rs. 38,00,671/-. On enquiry from the appellant, he initially stated that the currencies belonging to Mr. Dinesh Manohar Pahuja and Mr. Manohar Shyamlal Pahuja, resident at China, however later on took U turn and stated that the currencies belonged to one businessman in Singapore namely Shri Khushaldas Belani who gave to the appellant for buying properties while coming to India from his last visit. However since the deal was not through the said currencies being taken back to give to Shri Belani. He produced receipt of purchase of said foreign currencies in the name of Shri Belani from money exchanger M/s. Anneshah Trading, Singapore. On enquiry through DRI through high Commission of India, Singapore, Shri Basher Ahmed Proprietor of M/s. Anneshah Trading confirmed that receipt No. A-5006 was not issued by him. It appeared that sale invoice of foreign currencies submitted by the appellant was found forged. Show cause notice No. SD/INT/AIU/10/2007 AP C dated 20.09.2007 was issued to the appellant proposing confiscation of seized currencies and consequential penalty. The adjudicating authority vide the impugned order passed following order:
Having due regard to the facts and circumstances of the case, I pass the following orders:
ORDER
(i) I order absolute confiscation of the impugned Foreign and Indian Currencies equivalent to Indian Rs. 38,00,671/- under the provisions of Section 113 (d), (e) and (h) of the Customs Act, 1962.
(ii) I impose a penalty of Rs.4,00,000/- (Rs. Four Lakhs only) on Shri Harchandani Choith Nanikram, under Section 114 (i) of the Customs Act, 1962.
(iii) I order confiscation of the zipper hand bag of Riconia Airlines make, the trouser and the white coloured under pant which were used to conceal the seized assorted foreign currency under Section 118 (b) of the Customs Act. Aggrieved by the impugned order, the appellant is before me.
3. Shri Sanjay Agarwal Ld. Counsel, appearing for the appellant made the arguments which were reduced in written submission as under:-
1. The Adjudicating Authority held that export of currencies was 'restricted'. It was further held that the Appellant was not carrying any RBI permission. It is not the case of the Department that the export of currencies was per se prohibited, or that currencies were notified as 'prohibited goods' under the provisions of the Customs Act, 1962 or any other law. The definition of 'prohibited goods' under the Customs Act, was however, erroneously invoked in the context of section 125, by erroneously relying on Judgments which were rendered in the context of section 111 or 113, and thus were not binding precedents for the purpose of section 125. The said approach is deprecated by the Hon'ble Apex Court in Escorts Ltd, 2004 (173) E.L.T. 113 (S.C.) with following observations-
"8. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated.."
Moreover, Section 2, which contains definitions, begins with the following -
"2. Definitions. - In this Act, unless the context otherwise requires"
Thus, the definition of 'prohibited goods', whether would apply in the context of section 125, required examination, dehors its applicability in the context of section 111 or 113, which was not done in the impugned order.
2. In UOI vs. Asian Food Industries, 2006 (204) ELT 8 (SC), the Hon'ble Supreme Court was pleased to hold that -
"43. The expression "regulate" and "prohibit" inhere in them elements of restriction but it varies in degree ..... "
"46. The terms, however, indisputably would be construed having been used Section 3(2) of the 1992 Act uses prohibition, restriction and regulation. They are, thus, meant to be applied differently. Section 51 of the 1962 Act also speaks of prohibition. Thus, in terms of the 1992 Act as also the policy and the procedure laid down thereunder, the terms are required to be applied in different situations wherefore different orders have to be made or different provisions in the same order are required therefore."
3. Accordingly, the Respondent ought to have considered that so far as Section 125 of the Customs Act is concerned, unless the importation or exportation of goods is expressly "prohibited", the Adjudication Authority is bound to give to the Owner the goods an option to pay fine in lieu of confiscation. Since the import of currencies is not expressly prohibited under Section 11 of the Customs Act, 1962 or by any other statutory notification, the Respondent ought to have granted an option to redeem the sae, on payment of fine in lieu of confiscation.
4. As evident from the judgment in Asian Food Industries (supra) the meaning of word "prohibited" will have to be construed in regard to the text and context in which it is used. Section 2(33) although defines "prohibited goods", however the section itself before applying the definition puts a rider as follows -
"2. Definitions -In this Act, unless the context otherwise requires-
'(33) prohibited goods' means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with".
5. It is settled law that a definition is not to be read in isolation but in the context of the statutory provisions, so as to give a meaningful application to them and where the context makes the definition inapplicable, the same meaning cannot be assigned, by application of the words 'unless the context otherwise requires'. Reliance in this regard is placed on following binding precedents of Hon'ble Apex Court -
a. In Mukesh K. Tripathi vs Senior Divisional Manager, L1C, (2004) 8 SCC 387 this Court observed: (SCC pp. 399-400 paras 39-40) -
"39. The interpretation clause contained in a statute although may deserve a broader meaning having employed the word 'includes' but therefore also it is necessary to keep in view the scheme of the object and purport of the statute which takes him out of the said definition. Furthermore, the interpretation section begins with words 'unless the context otherwise requires'.
b. In Ramesh Mehta vs Sanwal Chand Singhvi, (2004) 5 SCC 409 it was noticed:
(SCC p. 426, paras 27-28)-
"27. A definition is not to be read in isolation. It must be read in the context of phrase which would define it. It should not be vague or ambiguous. The definition of words must be given a meaningful application; where the context makes the definition given in the interpretation clause inapplicable, the same meaning cannot be assigned'.
c. In State of Maharashtra vs Indian Medical Assn., (2002) 1 SCC 589 it was observed that the definition given in the interpretation clause having regard to the contents would not be applicable. It was stated : (SCC p. 598, para 8) -
"8. A bare perusal of Section 2 of the Act shows that it starts with the words 'in this Act, unless the context otherwise requires ... ' Let us find out whether in the context of the provisions of Section 64 the Aft the defined meaning of the expression 'management' can be assigned to the word 'management' in Section 64 of the Act. In para 3 of the Regulation, the Essentiality Certificate is required to be given by the State Government and permission to establish a new medical college is to be given by the State Government under Section 64 of the Act. If we give the defined meaning to the expression 'management' occurring in Section 64 of the Act, it would mean the State government is required to apply itself for grant of permission to set up a government medical college through the University. Similarly it would also mean the State Government applying to itself for grant of Essentiality Certificate under para 3 of the Regulation. We are afraid. the defined meaning of the expression 'management' cannot be assigned to the expression 'management' occurring in Section 64 of the Act. In the present case, the context does not permit or requires to apply the defined meaning to word 'management; occurring in Section 64 of the Act."
6. For the purpose of invoking section 111 (d), the word "prohibition" has been interpreted liberally in light of the words "improperly imported" for confiscation of all goods, however, when it comes to section 125, if the definition is applied, the same would result in absurdity and would render the provisions redundant and otiose. Under section 125 if confiscation is authorized by the Act, the Adjudicating Authority has two options offered by statute-
a. If importation or exportation of the confiscated goods is "prohibited" under this Act or any other law, he "may" give to the owner of the goods an option to pay in lieu of confiscation such fine as he thinks fit, or b. In the case of any other goods, he "shall" give to the owner of the goods an option to pay in lieu of confiscation such fine as he thinks fit.
Therefore in the context of section 125 if the word "prohibited" is construed as to apply in respect of every violation of any regulation or restriction or statutory procedural requirement, the said section would be rendered redundant and meaningless, and no such interpretation can thus be given in the context of section 125, in light of the judgment of Hon'ble Supreme Court in Asian Food Industries (supra) r/w the above referred binding precedents on interpretation of words "unless the context otherwise requires". Therefore, the judgments relied in the impugned order are not applicable in the context that the aforesaid legal position binding precedents of Hon'ble Apex Court have not been considered therein.
7. After considering the above precedents, in the matter of Noor Moiddin Bapa, theCommissioner (Appeals) was pleased to uphold the above proposition and had set aside absolute confiscation. The order of Commissioner (Appeals) was accepted by Revenue without any challenge thereto. The Central Government thereafter modified the order of Commissioner (Appeals) and was pleased to reduce the fine and penalty imposed by the Commissioner (Appeals).
8. In this context, it is relevant to point to Judgment of Hon'ble Andhra Pradesh High Court in Shaik Jamal Basha vs. GOI, 1997 (91 ) ELT 277 (AP), wherein section 111 as well as section 125 were considered and it was held after considering the scheme of section 125 that-
"3. But, all the same, we find the petitioner as entitled to a different relief. The order of confiscation is made under Section 111 of the Customs Act, 1962 on account of concealment. Section 125 requires that whenever confiscation of any goods is authorised by the Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under the Act or under any other law for the time being in force, and shall in the case of any other goods, give to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit. Rule 9 of the Baggage Rules, 1978 framed under Section 79(2) of the Customs Act, 1962 lists Gold in any form other than ornaments in Appendix B of the Rules as articles which shall not be imported free of duty. Hence gold in the form other than ornaments is entitled to be imported on payment of duty. Attempt to import gold unauthorisedly will thus come under the second part of Section 125 (1) of the Act where the adjudging officer is under mandatory duty to give option to the person found guilty to pay (fine) in lieu of confiscation. Section 125 of the Act leaves option to the officer to grant the benefit or not so far as goods whose import is prohibited but no such option is available in respect of goods which can be imported, but because of the method of importation adopted, become liable for confiscation. A perusal of the order of the Deputy Collector of Customs shows him to have not kept this distinction in mind and to have straightaway proceeded to confiscate the gold without grant of opportunity to the petitioner to pay (fine) in lieu of confiscation. The order passed by the Deputy Collector of Customs is as under:
"Record of Personal Hearing and Findings: The passenger states that for his sister's marriage he has brought the gold and on the advice from one of his friends he concealed the gold in the suitcase handle to avoid payment of duty. The passenger as such has deliberately concealed the gold to avoid detention and payment of duty. The briefcase used to conceal the gold is also liable for confiscation.
xxxx xxxx xxxx xxxx xxxx xxxx (The earlier portion of the printed form of the order, marked xxxxx were left blank and do not form part of the Order.) I also order absolute confiscation of the goods (gold) valued Rs. 1,20,969 under Section 111 (d), (I), (m) and (0) of Customs Act, 1962, read with Section 3(3) and Section 4 of Foreign Trade (0 & R) Act, 1922. I further impose a penalty of Rs. 5,000/- (Rupees five thousand only) under Section 112 of Customs Act, 1962 for importing goods in contravention of the restriction.
I also confiscate the briefcase of NCv used for concealment of the said gold.
Sd/-xxxx Deputy Collector of Customs. It is apparent that the distinction and the non-compliance with the provisions of law as pointed out earlier was not kept in view either by the original, or the appellate authority or the revisional authority.
4. In that view of the matter, we set aside the orders of the Assistant (sic. Deputy) Collector of Customs and the appellate as well as the revisional authorities and remand the matter to the Deputy Collector of Customs, 4th respondent herein to allow opportunity to the petitioner to pay in lieu of confiscation such sum as he decides fit and decide the matter according to law.
9. Further, the Hon'ble Madras High Court in T Elavarasan, 2011 (266) ELT 167 (MAD HC),was pleased to rely on the said Judgment of Hon'ble Andhra Pradesh High Court and it was held that -
"15 .... It is also noted that gold is not a prohibited item. Further, an option is available to a person, who is the owner of the goods, or where such owner is not known, the person from whose possession or custody such goods had been seized, to pay fine, in lieu of confiscation, under Section 125 of the Customs Act, 1962. In such circumstances, there is nothing shown on behalf of the respondents that the petitioner is not entitled to get the goods released, on his payment of the customs duty and the penalty liable to be paid by him, as per the Notification No. 31/2003-Customs, dated 1-3-2003, issued under Chapter 71 of the First Schedule to the Customs Tariff Act, 1975.
16. From the decisions cited supra, relied on by the learned counsel appearing for the petitioner, it is clear that an option has to be given to the petitioner to pay the applicable customs duty and the redemption fine and to get the goods released, as per Section 125 of the Customs Act, 1962. Accordingly, the respondents are directed to release the gold jewellery in question, provisionally, to the petitioner, forthwith, on his paying the customs duty and the redemption fine, as per the Notification No. 31/2003-Customs, dated 1-3-2003, and as per the provisions of Section 125 of the Customs Act, 1962. it is also made clear that the provisional release of the goods in question would be subject to the adjudication proceedings to be conducted by the authorities concerned, and the petitioner shall cooperate, fully in the said proceedings ... "
10. It is further relevant to note that there is no provision in FEMA, similar to section 67 of FERA. For ready reference section 67 is reproduced thus -
"67. Application of the Customs Act, 1962:- The restrictions imposed by or under section 13, clause (a) of sub-section (1) of section 18, [section 18A] and clause (a) of sub-section (1) of the Customs Act, 1962 (52 of 1962), and all the provisions of that Act shall have effect accordingly .. "
Thus, the restrictions imposed under FEMA are no more restrictions imposed under section 11 of the Act.
11. As per General Notes to Export Policy, all goods other than the entries in the Export Licensing Schedule along with its appendices are freely exportable, subject to any other law for the time being in force. The said General Notes distinguish between 'prohibited' and 'restricted' goods, as separate class. Whereas, the 'prohibited' items are not permitted to be exported and export licence will not be given in the normal course for such goods, the 'restricted' items can be permitted for export under licence. There is no dispute on the fact that in the instant case, since the Appellant was not carrying RBI permission, the export of seized currencies was held as 'restricted'.
12. Regulation 5 of FEM (Export & Import of Currency) Regulations, 2000, notified vide Notification No.FEMA 6/RB 2000 dated 3.5.2000, reads as under-
"5. Prohibition on export and import of foreign currency:-
Except as otherwise provided in these regulations, no person shall, without the general or special permission of the Reserve Bank, export or send out of India, or import or bring into India, any foreign currency. 11 Similarly, section 11 (1) of Foreign Trade (Development & Regulation) Act, 1992, reads as follows-
"11. Contravention of provisions of this Act, Rules, Orders and Foreign Trade Policy. -
(1) No export or import shall be made by any person except in accordance with the provisions of this Act, the rules and orders made thereunder and the foreign trade policy for the time being in force."
13. If, even in the context of section 125, by invoking definition of 'prohibited goods', it is held that violation of these provisions in other enactments would render the goods prohibited, the word 'shall' used in section 125 would be redundant, nugatory, meaningless and otiose. Even in the arguments Revenue could not point out any situation where any 'goods' can be confiscated, but would not fall under the definition of 'prohibited goods' as interpreted in the context of section 111 or 113.
14. A larger Bench of this Hon'ble Tribunal in the matter of Peringatil Hamza vs. CC Airport, Mumbai, vide order dated 23.6.2014 in Appeal No.C/65/08-MUM was pleased to hold that currency beyond permissible limit are prohibited goods. Further, in para 7 thereof, it was held that Indian currency beyond Rs.10,000/- for taking outside India was 'restricted' goods. However, in para 7.1, it was held that the same was 'prohibited' and whether to allow the Appellant therein to redeem the currency on payment of fine or not, was thus left for consideration of the Referral Bench. It is submitted that-
(i) The argument of the Appellant therein was that currencies were freely importable or exportable, and where goods are freely importable or exportable, adjudicating authority shall give an option to redeem the goods on payment of fine. Thus, the argument itself proceeded on an erroneous basis, followed by a concession that if the goods are not freely importable or exportable, grant of option to pay fine was discretionary. No such condition flows from bare reading of section 125. In Kulwant Kaur's case, (2001) 4 SCC 262, the Hon'ble Supreme Court in para 2 of the judgment was pleased to hold that a decision, which proceeds on the basis of a concession, cannot be termed to be a binding precedent.
(ii) Moreover, the binding precedent in Shaik Jamal Basha vs. GOI (supra) of Andhra Pradesh High Court, which was also followed by Hon'ble Madras High Court in T. Elavarasan (supra), was not cited by both sides.
(iii) The precedent decisions of the Hon'ble Apex Court relied hereinabove, and the arguments being advanced herein, were also not brought to the notice of the Hon'ble larger Bench.
(iv) It is, therefore, submitted that the Judgments of Hon'ble High Court will have precedence over the said Judgment of larger Bench. In any event, the Referral Bench thereafter, was pleased to permit option to redeem on payment of fine.
15. The Revenue in the course of arguments relied on the Judgments reported in Harish Muljimal Gandhi, 2013 (294) ELT 470 (Tri. - Mumbai), UOI vs. Mohammed Aijaj Ahmed, 2009 (244) ELT 49 (Born.) and CC vs. Samynathan Murugesan, 2009 (247) ELT 21 (Mad.). The challenge to the latter two Judgments was dismissed before the Hon'ble Apex Court. It is submitted that -
(i) In Harish Muljimal Gandhi (supra), neither the Judgment of Hon'ble Andhra Pradesh High Court in Shaik Jamal Basha (supra), nor section 67 of FERA and non-existence of any similar provision in FEMA, was brought to the knowledge of the Hon'ble Tribunal. The binding precedents relied hereinabove for construing the purport of section 125 were also not pointed out.
(ii) In 2009 (244) ELT 49 (Bom.), UOI vs. Mohammed Aijaj Ahmed, in fact, the Hon'ble Bombay High Court was pleased to hold that-
"2 .... it would thus be clear that if only the owner is not known, then a person from whose possession or custody such goods have been seized, could have given an option to pay in lieu of confiscation such fine as the said officer thinks fit. The said precedent of Hon'ble Bombay High Court, which was upheld by the Hon'ble Apex Court, therefore, favours the Appellant rather than the Department, as it is undisputed position that none other than the Appellant herein has claimed the seized currency, and although the owner of the entire seized currencies is neither ascertained, no known in the instant case, however, it is positive case of Department that the seizure was made from possession or custody of the Appellant.
(v) The judgment of Hon'ble Madras High Court in 2009 (247) ELT 21 (Mad.) proceeds on the basis of judgment in Om Prakash Bhatia (supra), which is not in the context of section 125 of the Customs Act, as explained hereinabove. Moreover, the said Judgment runs counter to the Judgment of Hon'ble Bombay High Court in Mohammed Aijaj Ahmed (supra). Moreover, the precedents of Hon'ble Apex Court and the relevant statutory provisions as explained hereinabove, were not even brought to the notice of the Hon'ble High Court. It is submitted that view taken by the jurisdictional High Court in Bombay would be binding. Further, in this context, it may be relevant to reproduce the following passage recorded by this Hon'ble Tribunal in Maheshwari Solvent Extraction Ltd, 2014 (299) ELT 116, by reproducing observations of Hon'ble Supreme Court-
"19. Further, in the case of Babu Parasu Kaikadi v. Babu, (2004) 1 SCC 681 the Hon 'ble Apex Court observed as under .' "17. In Govt. of A.P. v. B. Satyanarayana Rao it has been held as follows.' (SCC p.264, para 8) "The rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue. "18. Furthermore, this Court, while rendering judgment in Dhondiram Tatoba Kadam was bound by its earlier decision of a coordinate Bench in Ramchandra Keshav Adke. We are bound to follow the earlier judgment which is precisely on the point in preference to the later judgment which has been rendered without adequate argument at the Bar and also without reference to the mandatory provisions of the Act."
(vi) Several other precedents of Government of India, and of this Hon'ble Tribunal wherein the seized currency was released on payment of fine, are already placed on record. Thus, without prejudice, even if, the Appellant fails in his argument that grant of option to redeem the goods on payment of fine was mandatory, a case for exercising discretion for grant of such option is made out in the instant case.
(vii) The penalty imposed is also very high. The seizure was effected several years back. Grave loss has already been caused. Case for modification by reduction of penalty amount is also therefore, made out.
The Ld. Counsel also placed reliance on following judgments:
(i) Peringatil Hamza Vs. CC (Airport), Mumbai Tribunal Mumbais order No. A/1228/14/SMB/C-IV dt. 18.7.2014
(ii) Bhagav B. Patel & Others Vs. Commissioner of Customs, CST, Mumbai Tribunal Mumbais Order No. A/2388-2391/15/CB dt. 4.8.2015.
4. Shri D. K. Sinha Ld. Asstt. Commissioner (A.R.) appearing on behalf of Revenue reiterates the findings of the impugned order. He further submits that in various judgments, it is held that prohibition includes restriction. Therefore even if it is construed that export of currencies is restricted it falls under prohibited goods. As regard option of redemption, he submits that it is discretionary of the authority and the discretion is exercised on each nature and fact of the case. In each and every case redemption can not be allowed. In the present case looking to the conduct of the appellant who took different stands about source of the currencies and could not establish the legal source thereof, the Ld. Commissioner has rightly ordered for absolute confiscation of currencies, which does not require interference. In support he placed reliance on following case laws:
(i) Sheikh Mohd. Omer Vs. Collector of Customs, Calcutta And Others 1983 (13) E.L.T. 1439 (S.C.)
(ii) Om Prakash Bhatia Vs. Commissioner of Customs, Delhi 2003 (155) E.L.T. 423 (S.C.)
(iii) Harinder Pal Singh Shergill Vs. Commissioner of Customs, Mumbai 2003 (160) E.L.T. 358 (Tri.Del.)
(iv) Ram Kumar Vs. Commissioner of Customs 2015 (320) E.L.T. 369
(v) Fayaz Gulam Godil Vs. Commissioner of Customs (C.S.I. Airport), Mumbai 2014 (310) E.L.T. 357 (Tri.-Mumbai)
(vi) Peringatil Hamza Vs. CC (Airport) Tribunals Mumbai Order No. M/1280/14/CSTB/C-I dt. 12.6.2014
(vii) Abdul Hussain Taherbhai Lokhandwala Vs. Commissioner of Customs (CSI Airport), Mumbai Tribunals Mumbai Order No. A/347/10/CSTB/C-II
(viii) Mohd. Azeem Vs. Commissioner of Customs (Airport), Mumbai
(ix) 2005 (186) E.L.T. 440 (Tri.-Chennai)
5. I have carefully considered the submissions made by both the sides. From overall facts of the case, I find that it is established that appellant attempted to export by carrying himself as passenger, foreign and Indian currencies without declaration to the Customs authority and without permission from RBI. Therefore the same are undoubtedly liable for confiscation. As per the submission of the Ld. Counsel that the Ld. Commissioner should have given option for redemption of currencies, in this regard I go through the provision for redemption as provided under Section 125 which reproduced below:
125. Option to pay fine in lieu of confiscation. (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods 1[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:
From the above section 125, it is the discretion vested in the authority whether to allow redemption of confiscated goods on payment of fine or otherwise. In the present case it is noticed that the appellant admittedly tried to mislead the officers, investigating the case. First he stated that currencies belonged to Mr. Dinesh Manohar Pahuja and Mr. Manohar Shyamlal Pahuja, China then changed his statement that it belonged to Mr. Khushaldas Belani of Singapore. In further investigation by DRI, as per the report of High Commission of India at Singapore the currencies were not bought even by Shri Kushaldas Belani. Therefore the appellant at every stage given wrong statement about source of currencies. As per RBI and FEMA provision export of currencies is subject to approvals and permission. Therefore attempt of export of currencies without such approvals/permissions lead to confiscation. As I discussed above the discretion of option for redemption of currencies was vested in the Adjudicating Authority. Looking to the conduct of the appellant and nature of the offence, in my view the Adjudicating Authority has rightly not allowed redemption of currencies to the appellant. I also not find fault in the discretion exercised by the Adjudicating Authority. On going through the various judgments cited by the rivals. I observed that in many cases, the seized currencies were confiscated absolutely. Therefore, even if the Ld. Counsels submission is accepted that the confiscated currencies can be redeemed on payment of fine but it is subject to the discretion of Adjudicating Authority as per the clear interpretation of the Section 125 of the Customs Act, 1962. As discussed above, in my view the Adjudicating Authority taking into overall facts of the case, used his discretion not to give option for redemption and I do not find anything wrong in it. Therefore I do not find any infirmity in the findings of the impugned order. The impugned order is upheld. The appeal is dismissed.
(Pronounced in court on 01/08/2016) (Ramesh Nair) Member (Judicial) SM.2
C/941/08