Custom, Excise & Service Tax Tribunal
Pawan Munjal vs Commissioner, Customs-New Delhi on 28 March, 2022
Author: Dilip Gupta
Bench: Dilip Gupta
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH
CUSTOMS APPEAL NO. 50497 OF 2022
(Arising out of Order-in-Original No. CC(A) Cus/D-1Airport/191/2021-22 dated
30.07.2021 passed by the Commissioner of Customs, (Appeals) New Delhi)
Pawan Munjal ...Appellant
versus
Commissioner of Customs, ...Respondent
New Costoms House,
New Delhi
APPEARANCE:
Shri Vikram Nankani, Senior Advocate with Shri Mahesh Agarwal, Shri Rishi
Agarwal, Shri Alok Yadav and Shri M.S. Ananth, Advocates - for the
appellant
Shri Nagender Yadav, Authorized Representative - for the Respondent
CORAM:
HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT
HON'BLE MR. P.ANJANI KUMAR, MEMBER (TECHNICAL)
Date of Hearing: 10.03.2022
Date of Decision: 28.03.2022
FINAL ORDER NO. 50283/2022
JUSTICE DILIP GUPTA:
The order dated 30.07.2021 passed by the Commissioner of
Customs (Appeals)1 has been assailed in this appeal. The order dated
19.11.2019 passed by the Additional Commissioner of Customs 2
dropping the proceedings initiated against the appellant by the show
cause notice dated 17.07.2019, has been modified by the
Commissioner (Appeals) in the following manner by treating the
1. the Commissioner (Appeals)
2. the Additional Commissioner
2
C/50497/2022
appellant as a „beneficial owner‟ under section 2(3A) of the Customs
Act, 19623:
ORDER
a.) In respect of foreign currency equivalent to Rs.
81,01,421/-seized from Sh. Amit Bali, penalty of Rs. 21,00,000/- is imposed under Section 114(i) of the Customs Act, 1962 read with Section 13 of the Foreign Exchange Management Act, 1999 on Sh. Pawan Kant Munjal, being the beneficial owner.
b.) In respect of illicit export of currency equivalent to Rs. 3,72,64,700/-, details of which were found in pen drive recovered from the office of M/s SEMPL, fine of Rs. 9.25 lakhs under Section 125 of the Customs Act,1962 and penalty of Rs. 95,00,000/- under Section 114(i) of the Customs Act, 1962 are imposed on Sh. Pawan Kant Munjal, being the beneficial owner.
c.) In respect of illicit export of currency equivalent to Rs. 21,35,25,172 - through travel cards issued in the name of various employees of M/s SEMPL and carried by Sh. Amit Bali, fine of Rs 50,00,000/- under Section 125 of the Customs Act, 1962 and penalty of Rs 5,35,00,000/- under Section 114(i) of the Customs Act, 1962 are imposed on Sh. Pawan Kant Munjal, being beneficial owner.
d.) In respect of illegal export of foreign currency equivalent to Rs. 13,90,20,8971- carried by Mr. Amit Bali in past, fine of Rs. 35,00,000/- under Section 125 of the Customs Act 1962 and penalty of Rs. 3,50,00,000/- under Section 114(i) of the Customs Act, 1962 are imposed on Sh. Pawan Kant Munjal, Being beneficial Owner.
2. The appellant is the Chairman, Chief Executive Officer and Managing Director of Hero MotoCorp Limited 4 which is said to be engaged in the sale of two wheelers through a network of dealers for
3. the Customs Act
4. HMC 3 C/50497/2022 which incentivization drives are carried out by HMC through dealer meets and gala events in India and abroad. According to the appellant, one such event was to be undertaken by HMC in Budapest in September 2018. The appellant has in the memo of appeal, further stated:
"2.4. Given the operational size, geographical footprint, overseas business interests and collaboration, HMC, on regular basis, within and outside of India, including but not limited to the following: (a) organizes several meetings, workshops, vendor engagement meetings, client engagement meetings, business sales and promotion events; (b) participates in international exhibitions/ events; (c) sends a select delegation to participate in various forums, conferences etc; (d) organize dealer meetings, deal incentive trips, dealer conferences, celebratory and milestone events; and (e) sponsors various events within and outside of India.
2.5. All such high-end meetings, event, conferences, participations, trips, workshops, forums, sponsors etc. required the presence and participation of the Appellant as a representative of the HMC at its cost and expense.
2.6. In order to organize such meetings, events, conferences, participations, trips, workshops, forums, sponsors etc., as afore- stated, requires outsourcing of the same to a separate and distinct legal entity for a consideration. Accordingly, the entire travel, event and logistics arrangements of the HMC personnel including that of the Appellant are and have been arranged, managed and borne by special third party presently and in past in all aspects including but not limited to bookings of hotel rooms, meeting / conference rooms, 4 C/50497/2022 flights, transfer, food, meals & beverages, client entertainment expenses etc. All such outsourcing and coordination is arranged, managed and done by HMC through several teams within HMC i.e. finance team, sales and marketing teams. As stated before, the execution teams of HMC use several specialist third party Indian service providers, who specialize in providing such travel, event management and logistics services to HMC, and HMC as a consideration against the provision of such services by such third party service providers settles their invoices in INR in India.
2.7. That some of the specialist third-party service provider used by HMC in relation to travel, event management and logistics arrangements in the past are as follows:
(a) M/s Showtime
(b) M/s Unbound
(c) M/s Salt Experience and Management Pvt.
Ltd.5 2.8. Appellant being the Chairman, Managing Director and CEO of HMC is required to attend several of the said the engagements / meetings, which are organized by HMC, whether within and/or outside of India. The frequency of the foreign trips are subject to the business requirements of HMC and the Appellant had travelled abroad several times during the last few years. Appellant has a dedicated secretarial team of persons, who provides assistance to the Appellant on a daily basis in organizing and scheduling the engagements of the Appellant. Appellant confirms the meeting dates and a blue- print of the meeting / events / conferences that the Appellant is required to attend for the business purposes of HMC and then the CEO Office / relevant department, for and on behalf of the Appellant, usually coordinates with the other execution teams
5. the SEMPL 5 C/50497/2022 within the HMC (e-finance, sales and marketing teams) in order to plan, executive and coordinate the travel, event management and logistics arrangements of the Appellant.
2.9. Given the core role and responsibility of the Appellant within the HMC, the Appellant is neither required nor involves himself in the travel, event and logistics management including the selection of the specialist third-party service providers for the said purpose, and the same is being handled independently and coordinated by other execution teams (finance, sales and marketing) within HMC.
2.10. Therefore, third party services, including that of SEMPL is engaged by the HMC through its various teams as aforestated to deal and coordinate for a consideration to be paid to SEMPL against the provision of such services rendered by SEMPL. All such payments are made against invoices raised directly on HMC and paid by the HMC to the service provider including SEMPL.
2.11. HMC has been using SEMPL as one of the specialist Indian third party service providers for the purpose of arranging travel, event management and logistics arrangements. SEMPL is an independent third party service provider. In other words, neither HMC nor the Appellant have any cross shareholding / financial interest in the SEMPL either directly or indirectly. All transactions between SEMPL and HMC are on arms-length basis, and have been audited by the statutory auditors of HMC as per Indian law.
2.12. Given that the very nature of services procured by HMC from SEMPL - travel / event management outside of India, and in order to ensure smooth coordination of the travel / event management / logistics arrangements outside of India, various personnel of SEMPL have accompanied the HMC staff (including the Appellant) to various 6 C/50497/2022 events, meetings, conferences, exhibitions organized by HMC, which have been arranged and managed by SEMPL. Accordingly, on many previous occasions various personnel of SEMPL had accompanied Appellant to various business meetings / events / exhibitions etc. abroad (hereinafter referred to as "SEMPL Travel Coordinators"). Mr. Amit Bali is one of the SEMPL Travel Coordinators.
2.13. SEMPL Travel Coordinators are all employees of SEMPL, and neither HMC nor the Appellant on any occasion have provided any financial incentives / salary to the SEMPL Travel Coordinators. All payments against the services provided by SEMPL (including SEMPL Travel Coordinators) within India and / or outside of India have been made by HMC in favour of SEMPL in India in Indian Rupees either through Cheque and/or NEFT against the invoices raised by SEMPL in favour of IIMC SEMPL, being a specialist third party provider in travel, event management and logistics arrangements, is required to ensure that all payments pertaining to travel / event management / logistics arrangements within India or outside India are in full compliance with all applicable rules and regulations as applicable (including Customs Act, 1962, Foreign Exchange and Management Act). SEMPL is an independent third party service provider, as such the Appellant and/or HMC is neither obligated nor required under any law to ensure that whether or not SEMPL is in contravention of applicable laws or enquire as to how and in which manner SEMPL is settling payments of its vendors / suppliers within India or outside of India.
2.14. As per the Company's policy, the HMC during the official trip of the Appellant on its behalf in the year 2018 (in and around September) sought the professional services of 7 C/50497/2022 SEMPL in ordinary course of business. It is pertinent to mention that the invoices were to be raised upon the HMC by the SEMPL like usual and like past trips of the Appellant on behalf of the HMC which were to be duly paid towards management fee as also towards the actual expenses of the entire trip.
2.15. Accordingly, SEMPL on its own accord, as per the contractual relationship between the HMC and SEMPL, assigned one of its resources as usual, namely, Mr. Amit Bali to accompany the Appellant on behalf of SEMPL for the entire arrangement and logistics for the said entire trip. On 20.08.2018, the Appellant was informed to board the flight bearing no. BA256, by the logistics team. Based on the same, appellant proceeded and boarded the said flight.
2.16. To the utter shock and surprise of the Appellant, he was deboarded from the said flight by the officials. Thereafter, appellant got to know that SEMPL acting through Amit Bali was found to be carrying alleged foreign currency comprising of 50409 USD; 30745 Euros and 25030 Pound Sterling, in his personal "carry- in/ on-board" luggage which was found during the security check in by CISF officials at the Indira Gandhi International Airport, New Delhi (the "IGI"). The alleged foreign currency as it appears, amount to Rupees equivalent to INR 81,01,421/- (Rupees Eighty One Lacs One Thousand Four Hundred Twenty One Only). The alleged foreign currencies were seized under Section 110 of the Customs Act. 1962 read with Foreign Exchange Management Act of 1992 (the "FEMA"), from Amit Bali vide seizure memo dated 20.08.2018."
(emphasis supplied) 8 C/50497/2022
3. A show cause notice dated 17.07.2019 was issued to the appellant proposing to impose penalty upon the appellant under section 114 (i) of the Customs Act. The appellant filed a detail reply to the show cause notice and refuted the allegations made against him. The Additional Commissioner, by order dated 19.11.2019, dropped the proceedings against the appellant and did not impose any penalty. The relevant portions of the order passed by the Additional Commissioner are reproduced below:
"58.5 Mr. Amit Bali, Noticee No. 2, is the lynchpin of the case. It is from him that forex in excess of the prescribed amount that could be carried out of India by an individual passenger without the need to declare it was recovered. It is Mr. Amit Bali who ostensibly carried forex in excess of the prescribed amount on several past occasions, and failed to declare it to customs on all occasions. xxxxxx.
58.6 It is clear that Mr. Amit Bali (Noticee No. 2) was the one required to approach customs authorities in the course of his departure for international destinations to declare any currency in excess of the prescribed amount. This he admittedly failed to do in respect of the currency seized from him. xxxxxxxx. Mr. Bali‟s inculpation rests heavily on recovery of forex from his possession. He might have been carrying out a business function of behalf of M/s SEMPL on the day of his interception and on all previous occasions, but he was in undeniably in possession of forex, and that makes him liable. I find his actions to be willful.
xxxxxxxxxx 58.10 One can now turn to examine the rule, if any, of Mr. Pawan Kant Munjal. I might as well start with the concept of beneficial owner, which has been relied upon to implicated Mr. Pawan Kant Munjal, Noticeee No. 5. The concept is relatively recent in Customs law in India, having been introduced into law only in the year 2017 (section 3A of the 9 C/50497/2022 Customs Act). The case, as we note from the circumstances, was booked in 2018. As a result of its recency, it has not yet been judicially tested extensively. Nevertheless, the limited jurisprudence in this regardin analogous contexts has been examined later for its possible bearing on the case at hand.
58.11 In any case, the Department has alleged Mr. Munjal to be beneficial owner of goods-foreign exchange, in this case-which was sought to be taken out of the country by Amit Bali on the day of the interception and on several past occasions. The concept has been invoked in acknowledgement of the fact that foreign currency was not and has never been recovered from the possession of Mr. Pawan Kant Munjal.
xxxxxxxxx 58.12 Mr. Amit Bali‟s intial statement lent seizing officer the reason to believe that forex recovered from Mr. Amit Bali belonged to Mr. Pawan Munjal. However, Mr. Amit Bali‟s various other statements have not been exemplars of coherence. Xxxxxxxxx 58.13 xxxxxxxxxxxx. In the reply filed by Noticee No. 5, it has been submitted that the Noticee No. 5 was not even aware that any cash was carried out by the Noticee No. 2. I am inclined to believe this because having entrusted the arrangements to M/s SEMPL, Mr. Munjal would have had no reason to have been aware of monetary arrangements effected in this regard by M/s SEMPL or Mr. Amit Bali, unless contrary evidence had been produced, which is not the case.
xxxxxxxxxx.
58.14 Mr. Amit Bali, from whose possession forex was recovered, is by all accounts, the person from whose possession foreign exchange was seized, and who is thus primarily culpable, as discussed above."
(emphasis supplied) 10 C/50497/2022
4. After examining the various statement recorded under section 108 of the Customs Act and the reply filed to the show cause notice, the Additional Commissioner noted facts and drew the following inference:
"(v) That Noticee No. 5 / HMC is a client of M/s SEMPL i.e. mere a recipient of services provided by M/s SEMPL (which, at the cost of repletion, is an independent third party service provider) and against the provisions of such services provided by M/s SEMPL to HMC, HMC settles all the invoices raised by M/s SEMPL in INR in India.
There is no evidence that the Noticee No. 5 or HMC exercise any financial/ shareholding interest in M/s SEMPL or exercises effective control of Noticee No. 5 in / over M/s SEMPL, Noticee No. 5 being the CEO and Chairman of HMC, to whom the service have been provided by M/s SEMPL, cannot be said to become the "beneficial owner" of M/s SEMPL in any which way."
(emphasis supplied)
5. The Department filed an appeal before the Commissioner (Appeals), who by order dated 17.07.2019, modified the order passed by the Additional Commissioner and the relevant findings recorded by the Commissioner (Appeals) are as follows:
"6.4 The Respondent in his defence has mainly relied upon the argument that the concept of beneficial owner does not apply in this case. In terms of Section 2(3A) of the Customs Act, 1962 beneficial owner means any person on whose behalf the goods are being imported or exported or who exercises effective control over the goods being imported or exported. From the facts of this case and statement of various persons it is clear that the Mr. Amit Bali and/or other employees of SEMPL did not carry the subject foreign currencies for their own benefit or to further the business SEMPL but the same were exported from India for use and on behalf of the Respondent. The 11 C/50497/2022 Respondent has-cited the judgment of Sunil B. Naik vs. Geowave Commander 2018 (5) SCC 505 to Bistinguish the requirements for being a beneficial owner. However, the facts of the case cited by the Respondent are different from the present case. Infact provisions of Section 2(3A) of the Customs Act, 1962 were not relevant in the said cited case. Therefore, ratio of the said judgment cited by the Respondent is not applicable in this case. It is also observed that the Adjudicating Authority in Order-in-Original dated 29.11.2019 has upheld the charge of illegal export of foreign currencies and had ordered for confiscation of foreign currencies and imposition of penalty on employees of SEMPL. However, it is clear that the Adjudicating Authority failed to consider the legal position in proper perspective and vital facts of this case relating to the role of the Respondent despite repeated evidence that the said forex was being carried for benefit of the Respondent.
6.5 Various other arguments taken by the Respondent fail to support his case. Despite SEMPL claiming to be owner of the foreign currencies, it is evident that the benefit of the same was flowing to the Respondent. Since violations of various provisions of law have been upheld by the Adjudicating Authority with regard to this, the beneficial owner i.e. the Respondent cannot escape the consequential fine and penalties.
6.6 I have also examined the case laws cited by the Respondent. However I find that each case is unique to its facts and circumstances. Applicability of a precedent depends on similarity of facts & circumstances, which has not been established in this case. Accordingly case laws referred by the Respondent are not applicable to present case. Therefore, Order-in-Original dated 29.11.2019 suffers from legal infirmity in so far as it relates to non-imposition of penalty on the Respondent. Accordingly, I pass the following order:-"
(emphasis supplied)
6. On the basis of the aforesaid findings, the Commissioner (Appeals) concluded that the appellant was a „beneficial owner‟ and 12 C/50497/2022 accordingly, passed the order, the relevant portion which has been reproduced above.
7. Shri Vikram Nankani, learned senior counsel assisted by Shri Mahesh Agarwal, Shri Rishi Agarwal, Shri Alok Yadav and Shri M.S. Ananth made the following submissions:
(i) The definition of „beneficial owner‟ in section 2(3A) of the Customs Act covers those cases where the owner of the goods is not available and a particular act is being carried out at the behest of some other person. Thus, if the owner of goods is available, as in the present case, the concept of „beneficial owner‟ cannot be applied. The Commissioner (Appeals) has, therefore, wrongly applied the concept of „beneficial owner‟ in the present case and passed an order against the appellant;
(ii) In the facts and circumstances of the case it is more than apparent that forex in excess of the prescribed amount was recovered from Amit Bali and in fact this finding was also recorded by the Additional Commissioner, which finding has not been disturbed by the Commissioner (Appeals);
(iii) The entire case against the appellant is mischaracterization of „beneficial owner‟ based on the use of the foreign exchange in the past as well as the intended use during the visit to London and Baltimore on 20.08.2018;
(iv) The use of the foreign exchange including foreign currency is directly linked to the purpose for which the same is drawn by the event management company SEMPL from authorised dealers. It is a matter of record, 13 C/50497/2022 proven beyond doubt, particularly by the nine statements, each of Hemant Dahiya and K.R. Raman that SEMPL acquired foreign exchange from authorised dealers from time to time. Such acquisition and/or drawl from exchange including currency was for organizing meetings with business associates, investors, lenders etc. and events and making logistical arrangements, including hotel accommodation, airport transfers, car rentals, gifts, lunches and dinners to „meet & greet‟, booking venues, decoration, artist etc. All these uses are for corporate purposes, and not personal purposes;
(v) The entire case against the appellant is misconceived inasmuch as foreign exchange for corporate purposes has been erroneously treated as personal expenses merely because the appellant is the Chairman and Managing Director of HMC which had organised, through SEMPL, events and meetings as part of its brand building and marketing and promotional activities. Consequently the appellant cannot be said to be the „beneficial owner‟ of the foreign exchange, acquired by SEMPL in accordance with law and used for purposes permissible in law;
(vi) The benefit of the meetings and events was to the Company and its business. It is, therefore, unreasonable and incorrect to hold that the appellant is the beneficial owner;
(vii) Since the acquisitions and drawl of foreign exchange is integrally connected to the purpose and use thereof, the examination of the use and purpose falls within the 14 C/50497/2022 domain of the same authorities who regulate the acquisition and/or drawl of the foreign exchange, and does not fall within the jurisdiction of the Customs Authorities. This is because the Customs Authorities are concerned only with the foreign exchange being carried out of India and are not concerned with the acquisition, possession, retention and use of the foreign exchange, which would fall within the jurisdiction of the Competent Authority under the Foreign Exchange Management Act, 19996. What does not fall within the domain of the Customs Authorities i.e the purpose and use of foreign exchange, cannot be a ground for imposition of penalty on the appellant; and
(viii) The order passed by the Commissioner (Appeals) is based on conjectures and surmises.
8. Shri Nagendra Yadav, learned authorised representative appearing for the Department, however supported the impugned order passed by the Commissioner (Appeals) and made the following submissions:
(i) The present appeal filed under section 129A of the Customs Act is not maintainable in view of what is stipulated in the first proviso to section 129A of the Customs Act as the issue relates to export of baggage;
(ii) As per section 2(3A) of the Customs Act, the appellant was the beneficial owner of foreign currency which was meant to be used for his personal expenses while abroad as per his requirement and direction;
6. FEMA 15 C/50497/2022
(iii) Even in the first statement recorded on 20.08.2018 under section 108 of the Customs Act, Amit Bali had clearly stated that the seized foreign currency belonged to the appellant;
(iv) The entire money which was carried by Amit Bali was to be used by the appellant mainly for his personal use;
(v) SEMPL had a yearly turnover of Rs. 200 crores and between 2014 and 2018 it had business of Rs. 785.96 crores from HMC and that to without any written contract;
(vi) It is a fact that the appellant was known to Hemant, (Director of SEMPL) and Amit Bali before inception of the company and SEMPL provided personal assistant to the appellant on all his foreign travels;
(vii) Foreign currencies were issued in the name of employees of SEMPL to be handed over to Amit Bali to meet the expenses of the appellant. Therefore, the foreign currencies were exported /attempted to be exported in violation of regulation 7(2)(b) of the Foreign Exchange Management (Export and Import of Currency) Regulations, 2015 and regulation 3(iii) of the Foreign Exchange Management (Possession and Retention of Foreign Currency) Regulations, 2015; and
(viii) The seized foreign currency was liable to confiscation under section 113(d) of the Customs Act read with section 10 (6) of FEMA.
9. The submissions advanced by the learned senior counsel for the appellant and the learned authorized representative appearing for the Department have been considered.
16C/50497/2022
10. The Principal Commissioner has held the appellant to be the „beneficial owner‟ of the seized foreign currency under section 2(3A) of the Customs Act. This is for the reason that the appellant was not carrying the said foreign currency and Amit Bali had not carried the foreign currency for his own benefit or for the business of SEMPL, but the foreign currency was being exported from India on behalf of the appellant for use of the appellant.
11. The concept of „beneficial owner‟ was for the first time introduced in section 2(3A) of the Customs Act by Finance Act 2017 w.e.f. 31.03.2017. Section 2(3A) of the Customs Act reads as follows:
"2(3A) "beneficial owner" means any person on whose behalf the goods are being imported or exported or who exercises effective control over the goods being imported or exported."
12. At the same time, the definition of „exporter‟ in section 2(20) and „importer‟ in section 2(26) of the Customs Act was also amended to introduce the concept of „beneficial owner‟.
13. Section 2(20) of the Customs Act is reproduced below:
"Section 2(20): „exporter‟, in relation to any goods at any time between their between their entry for export and the time when they are exported, includes any owner, beneficial owner or any person holding himself out to be the exporter.
14. Section 2(26) of the Customs Act is also reproduced below:
Section 2(26): „importer‟, in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner, beneficial owner or any person holding himself out to be the importer."17
C/50497/2022
15. A deeming fiction has been introduced in the concept of „beneficial owner‟ as the definition seeks to cover the loop hole where the actual owner of the goods was not available but the particular act was being carried out at the behest of some other person. This would mean that when the „owner‟ of the goods is available, the concept of „beneficial owner‟ under the deeming fiction of section 2(3A) of the Customs Act would not be applicable.
16. The Additional Commissioner, as noticed above, in the order dated 19.11.2019 examined the concept of „beneficial owner‟ and noticed that this concept was invoked because the foreign currency was not recovered from the possession of the appellant. The Additional Commissioner held, after examination of the statements recorded under section 108 of the Customs Act, that HMC was a mere recipient of the services provided by SEMPL and against such services invoices were raised by SEMPL; and when the appellant was not even aware that any cash was carried by Amit Bali, the appellant cannot be said to be the „beneficial owner‟. However, the Commissioner (Appeals), in the order dated 30.07.2021, concluded from the said statements that Amit Bali did not carry the foreign currency for the benefit of SEMPL, but the same was exported from India on behalf of the appellant for use of the appellant.
17. It would, therefore, be necessary to examine the contractual arrangement between HMC and SEMPL and the statements of various persons recorded under section 108 of the Customs Act.
18. According to the appellant, HMC which is engaged in the sale of two wheelers had to regularly carry out incentivization drives through dealer meets and events held in India and abroad. This included 18 C/50497/2022 organizing several meetings, workshops, vendor engagement meetings, client engagement meetings, business sales and promotion events, participation in international exhibitions/ events etc. This required the presence of the appellant as a representative of HMC at the cost and expense of HMC. For carrying out this purpose, a third party was required to be engaged and in the present case this was done by SEMPL, which specialised in providing such travel, event management and logistics services and for which it received consideration against the invoices raised in India. HMC had also sought the services of SEMPL in regard of the September 2018 event and for this SEMPL, on its own accord as per the contractual relationship between the HMC and SEMPL, assigned one of its resource person namely Amit Bali to accompany the appellant on behalf of SEMPL for the making such arrangement and logistics abroad. The appellant undertook the foreign trip on 20.08.2018 accompanied by Amit Bali. The appellant came to know that Amit Bali was found to be carrying foreign currency in his personal carry-in luggage during the security check by CISF officials at the Indira Gandhi International Airport, New Delhi.
19. The gist of the statements of various persons recorded under section 108 of the Customs Act are as follows:
Statement of Amit Bali (employee of SEMPL)
20.08.2018 Question 1:- Whether the said recovered Currency belongs to you?
Answer:- No, the said recovered Currency belongs to Sh.
Pawan Kant Munjal and was handed over to me by Sh. Hemant Dahiya to look after the expenses of 19 C/50497/2022 Sh. Pawan Kant Munjal. The bag from which the said currency recovered was mine.
Question 2:- When and where did you receive the said Currency?
Answer:- I received the said Currency at my office i.e. M/s Salt Experience & Management Pvt. Ltd., Mudit Square Building, 2nd Floor, Plot No. 24, Institutional Area, Prempuri, Sector-32, Gurgaon from Sh. Hemant Dahiya, Owner of the firm on 19.08.2018.
Question 4:- Who has given you the whole tour Programme of Sh. Pawan Kant Munjal?
Answer: Sh. Pawan Kant Munjal has informed me one week ago on my mobile to arrange a tour programme and expenses for his coming scheduled tour. He has told me on mobile to arrange 5 days tour for London and 5 days tour for New York. Later on Sh. Hemant Dahiya has also informed me about the same telephonically.
Question 5:- What was the purpose of visit of Sh. Pawan Kant Munjal to London and New York?
Answer:- Sh. Pawan Kant Munjal has to attend some business meeting in London and New York.
Question 6:- Did you have kept the said foreign currency in your hand baggage?
Answer:- Yes, I had kept the said foreign currency in my hand baggage.
Question 11:- Why this time you were carrying such a huge amount of foreign currency? Please explain.
Answer:- This time the tour is comparatively longer and we did not done any online booking in respect of hotels, taxis and other expenses. So we are carrying the huge amount of foreign currency for bearing all these said expenses.
20C/50497/2022 Question 12:- Who used to give you foreign currency for all your previous abroad visits with Sh. Pawan Kant Munjal?
Answer:- Sh. Hemant Dahiya used to give me foreign currency for all my previous abroad visits with Sh. Pawan Kant Munjal.
12.09.2018 Question 1:- Please explain the source of foreign Currency (USD 50409, Euro 30,745 and 25,030 Pound sterling) which was recovered from you on 20.08.2018?
Answer: I received the said Currency at my office i.e. M/s Salt Experience & Management Pvt. Ltd., Mudit Squre Building, 2nd Floor, Plot No. 24, Institutional Area, Prempuri, Sector-32, Gurgaon from the cashier of the company.
Question 13:- As per the ledger of foreign Currency provided by your Company i.e. M/s Salt Experience Pvt. Ltd., It is reflected that you have carried so much foreign currency in the previous visits also. What was the purpose of carrying the same?
Answer: During my previous foreign visits at times I used to carry mostly Travel card provided by my company to meet the expenses incurred during the tour. I generally carried 5000-10000 USD in cash form.
28.09.2018 Question 9:- When you were intercepted at IGI Airport on 20.08.2018, USD 50409, EURO 30745 and Pound Sterling 25030 were found undeclared with you. Do you agree with this? Whether the said foreign Currency belonged to you?
Answer 9:- Yes, I do agree that the said foreign currency were with me, which I did not declare before Customs. The said foreign currency belonged to my 21 C/50497/2022 company i.e. M/s SEMPL. I was given 50000 USD, 30000 EURO and 25000 Pound Sterling from the account of company on 18.08.2018. The rest of the foreign currency found with me was the remaining foreign currency of previous trips, which did not return to the company and I was keeping it for my personal expenses like my food expenses/taxi/phone top up.
Question 14:- Please see your statement dated 20.08.2018. In answer to question number 1, you stated that the money recovered from your hand baggage belonged to Mr. Pawan Kant Munjal and was handed over to you by Shri Hemant Dahiya to look after the expenses of Shri Pawan Kant Munjal of M/s. Here Moto Corps. But you have stated above that the seized foreign currency was given from your office?
Answer 14: I state that this foreign currency was to be used for the event of M/s Hero Moto Corps to be held at Budapest thus l stated in my statement dated 20.08.2018, that this seized foreign currency belonged to Mr. P. K. Munjal of M/s Hero Moto Corps. Further, in tension took the name of Mr. Hemant Dahiya, in my statement dated 20.08.2018, that he gave me this much foreign currency instead of Mr. Girijesh Kashmira.
Statement of Pawan Munjal (appellant) 20.08.2018 Question 1:- What was the purpose of your visit to London?
Answer: I had meetings with some business clients at London. Then after I had the plans to visit to Baltimore for some business meetings.
Question 2:- Who was travelling with you during the trip to London?
Answer: Mr. Amit Bali was assisting me during my business travel to London.
22C/50497/2022 Question 5:- Were you aware that Mr. Amit Bali was carrying Foreign Currency?
Answer: No, I was not aware about the above said fact.
27.03.2019 Question 10: Please see the statement dated 20.08.2018 of Mr. Amit Bali and state that why did he stated that the seized foreign currency belonged to you?
Answer: I don‟t have any knowledge about why Amit Bali made such claim. I reiterated that the said seized foreign currency did not belong to me.
Statement of Hemant Dahiya (Director of SEMPL) 20.08.2018 Question 4:- Were you aware about the visit of Sh. Pawan Kant Munjal to London?
Answer: Yes, I had the knowledge about his upcoming visits in London, where he had some meetings about technology briefing and further he had the plans to visit Baltimore in US for meeting with distributors of M/s Hero Motocorp.
Question 5:- Who had planned the visit of Sh. Pawan Kant Munjal to London?
Answer: Sh. Pawan Kant Munjal had given the Tour Plans to our company about his visits to London and thereafter to US. Accordingly, I asked Shri Amit Bali to accompany him and to make necessary arrangements to organize the meetings in London and US. As his company i.e. Hero Moto Corp is in our top clients, we look after his accommodations, transportation and official arrangements for his meetings.
Question 6:- Were you aware that Mr. Amit Bali was carrying Foreign Currency with him?
Answer: Yes, it is a regular practice when any of our staff visits with our clients he/she use to carry some 23 C/50497/2022 foreign currency and foreign exchange for expenses.
Question 7:- How much Foreign Currency was Mr. Amit Bali carring with him?
Answer: I don‟t have the exact idea that how much foreign currency Mr. Amit Bali was carrying with him. Our Finance head Mr. K. R. Raman would have idea it. According to the upcoming expenses the funds in Cash would have handed over to Mr. Amit Bali.
11.03.2019 Question 1: In respect of the events organised by M/s. Salt Experience and Management Pvt. Ltd. (SEMPL) for M/s. Hero MotoCorp (HMC), whose responsibility (M/s. SEMPL or M/s. HMC) was to ensure the compliance of various acts/statues especially under the Customs Act, 1962; the Foreign Exchange Management Act, 1999; the Income-tax Act, 1961 and the Companies Act, 2013?
Answer 1: As per my understanding and oral agreement with M/s HMC, as M/s SEMPL was organising events for M/s. HMC, it was the responsibility of M/s. SEMPL to ensure all sorts of compliance of any act/statute including the Customs Act, FEMA, Income Tax Act, Companies Act etc., while executing any project abroad or in India. I further state that whatever expenses M/s SEMPL was incurring while executing the project, that were included in the bills raised to M/s HMC and M/s HMC was paying to us. In that process, in respect of the payments made by M/s. HMC to us, if there was any sort of violation of provisions of any Act that would be the responsibility of M/s HMC.
Statement of K. R. Raman (Finance Head) 21.08.2018 Question 6:- What is the normal procedure for release of funds for organizing any event?
24C/50497/2022 Answer: Usually Client Servicing Team of our company finalizes the complete details with our clients and send Job Cost Analysis (JCA) to the finance department requesting for approval of cost and release of funds.
Question 7:- Had Client Servicing Team of your company sent Job Cost Analysis (JCA) to Finance department for organizing the upcoming event at London and USA for your client M/s Hero Motocorp Limited this time?
Answer: No, this time Client Servicing Teams of our company hadn‟t sent Job Cost Analysis (JCA) to Finance department. For our regular clients we generally do not insist for JCA instantly and it may be received later to avoid delays in the service to clients.
Question 9:- How and when you got the information about the foreign visit of Mr. Pawan Kant Munjal dated 20.08.2018 and related information about his meetings?
Answer: On 17.08.2018 i.e. on Friday I have received a call from the Client Servicing Team of our company regarding the request for funds to organize some events for our client M/s Hero Motocorp Limited abroad in recent future.
Question 12:- Have your company got foreign Currency exchanged of 50,409 USD, 30745 Euros and 25030 Pound Sterling from any authorised currency dealers in the name of Mr. Amit Bali?
Answer: No, recently we had not purchased any currency in the name of Mr. Amit Bali.
Question 13:- If you have not purchased foreign Currency of 50,409 USD, 30745 Euros and 25030 Pound Sterling from any authorised currency dealers in the name of Mr. Amit Bali, how you have provided the same to Mr. Amit Bali?
25C/50497/2022 Answer: The unspared currency handed over by the our staffs while returned from foreign events got accumulated in our office and accounts and the same was given to Mr. Amit Bali to meet the expenses.
Question 14:- Why this time Mr. Amit Bali was carrying huge (50,409 USD, 30745 Euros and 25030 Pound Sterling) amount of foreign currency? Please explain.
Answer: We got the intimation regarding upcoming events of M/s Hero Motocorp on Friday i.e. on 17.08.2018 only. There was no any way out to make the online transactions in respect of bookings and others expenditure to be made during the visits so we decided to give the foreign currency to Mr. Amit Bali which was kept in our company accounts. The foreign currency was handed over to Mr. Bali by Mr. Girijesh Kashmira, cashier currency was we were not aware about the fact that the Currency receipts in the name of only Passengers were required to be carried with him.
Question 17:- How the payment of events organized or travelling expenses etc. from your clients receives by your company?
Answer: We raise the bill to our clients in respect of expenses and our service charges and the payment has been made to our company through NEFT/Cheques.
11.03.2019 Question 2: Please see the statement dated 11.03.2019 of Mr. Hemant Dahiya wherein he has stated that Amit Bali was issued the forex travel cards purchased in names of other employees of M/s. SEMPL, who did not even travel abroad, and that Amit Bali had used those forex travel cards to meet out the expenses of Mr. Pawan Munjal during his foreign 26 C/50497/2022 visits, on yours and Hemant Dahia's instructions. What do you have to state in this regard?
Answer 2: I have seen the statement dated 11.03.2019 of Mr. Hemant Dahiya and have put my dated signature on the same. In this regard, I state that I used to get the details of team members who were travelling for any project along with the estimated figures towards expenses from Mr. Hemant Dahiya and he used to ask me to arrange the funds in the given names. I then used to arrange the foreign exchange in the form of cash or forex travel cards through the cashier of the company by way of purchase in the given name, who were to travel, out of the funds of the company. Sometimes, these travel cards, issued in name of other employees, were also given to Mr. Amit Bali, by the cashier on my approval and this used to be in the knowledge of Mr. Hemant Dahiya also. However, I was not aware whether team members, in whose names the forex travel cards were purchased, travelled abroad or not and Mr. Hemant Dahiya should be aware about the same as he used to decide the team travelling abroad in relation to a project.
Question 3: Who decides the expenses which were to be made by those forex cards including those purchased in names of other employees of M/s. SEMPL, who did not even travel abroad for the events for which the said cards were issued in their name but were carried by Amit Bali?
Answer 3: My job was to arrange the forex travel cards
depending upon expense requirements
communicated to me by Mr. Hemant Dahiya, MICE team and Mr. Amit Bali; however, the exact expenses to be made through those forex cards is decided by Mr. Hemant Dahiya, Amit Bali or the client for whom the event is being organised.
Statement of Girijesh Kashmira (cashier) 27 C/50497/2022 28.09.2018 Question 11:- How is the record of the foreign currency, in cash form, kept/stored in the said safe of M/s. SEMPL maintained?
Answer: The entry of the foreign currency (cash form) is made by me in the journal account of the company, maintained in Tally accounting system, when the said currency is returned to me by any official/employee of M/s. SEMPL. However, no exclusive record is maintained in respect of the cash (foreign Currency) kept in the abovementioned safe of the company.
Question 12:- Are you aware about the seizure of foreign currency equivalent to Rs. 81 Lakhs (approx), in cash-form, from Mr. Amit Bali, an employee of M/s. SEMPL, at IGI Airport, New Delhi on 20.08.2018?
Answer: Yes, I am aware about the said seizure of foreign currency from Mr. Amit Bali.
Question 13:- Are you aware from where Mr. Amit Bali received the said foreign currency, seized from him at IGI Airport, New Delhi on 20.08.2018?
Answer: Yes, I handed over the said foreign currency to Mr. Amit Bali.
Question 14:- From where did you get the said foreign currency for handing the same to Mr. Amit Bali and on whose instructions did you give the said foreign currency to Mr. Amit Bali? When and where did you hand over the said foreign currency to Mr. Amit Bali?
Answer: I took out the said foreign currency from the safe kept in our office. Further, I received instructions from Mr. Kumar Rajesh Raman to give the said foreign currency to Mr. Amit Bali. I handed over the said foreign currency to Mr. Amit Bali in the 28 C/50497/2022 afternoon of 18.08.2018 at the office of M/s. SEMPL.
Question 15: When and how did Mr. Kumar Rajesh Raman give you instructions for handing the said foreign currency to Mr. Amit Bali?
Answer 15: Mr. Kumar Rajesh Raman telephonically instructed me on my mobile no. 9582299646 from his mobile no. 9811900563 in the morning of 18.08.2018; however, I do not remember the exact time.
Question 16: Were you, Mr. Amit Bali and Mr. Kumar Rajesh Raman in office throughout the day on 18.08.2018?
Answer 16: I was in office till evening. Mr. Kumar Rajesh Raman was not in the office on 18.08.2018. Mr. Amit Bali came to office in the afternoon on 18.08.2018 and left the office immediately after receiving the said foreign currency amount from me.
20. The facts alleged by the appellant in the memo of appeal have to be tested in the light of the statements recorded under section 108 of the Customs Act.
21. The statement made by Amit Bali needs to be examined first.
In the statement recorded on 20.08.2018, when asked whether the said recovered currency belonged to him, Amit Bali stated that the recovered currency belonged to the appellant and was handed over to him (Amit Bali) by Hemant Dahiya to look after the expenses of the appellant. He further stated that the bag from which the currency was recovered belonged to him. It is this statement wherein Amit Bali stated that the recovered currency belong to the appellant that the concept of „beneficial owner‟ has been drawn, though it needs to be noted that at the same time Amit Bali had stated that the currency 29 C/50497/2022 was handed over to him by Hemant Dahiya who is one of the Director of SEMPL. Infact, to the next question Amit Bali stated that the currency was received by him at his office on 19.08.2018. Amit Bali further stated that he was carrying the currency since SEMPL could not do online booking for hotels, taxies and other expenses and this amount was to be utilized for the purpose. In the statement made on 28.09.2018 Amit Bali was again asked whether the said currency was declared by him and whether the foreign currency belonged to him.
Amit Bali categorically stated that the foreign currency was with him which he did not declare before the customs. He further stated that the foreign currency belonged to his company SEMPL. The moment Amit Bali stated that the currency belonged to SEMPL, he was reminded that on 20.08.2018 he had stated that the money recovered from his hand baggage belonged to the appellant. To this Amit Bali replied that the foreign currency was to be used for the event of HMC to be held that Budapest and, therefore, he had earlier stated that the seized foreign currency belonged to the appellant and because of tension he had stated that the said currency was given to him by Hemant Dahiya, though in fact the currency was given to him by Girijesh Kashmira, who is the cashier of SEMPL.
22. It is, therefore, clear that Amit Bali had clarified that the foreign currency that he was carrying in his hand baggage actually belonged to SEMPL and was to be utilized for the event organised by SEMPL for HMC. The Commissioner (Appeals) placed much emphasis on the earlier statement made by Amit Bali that the foreign currency belonged to the appellant without appreciating the subsequent statements made by Amit Bali.
30C/50497/2022
23. In this context, it would also be necessary to refer in the statement of Hemant Dahiya, a Director of SEMPL, made on 20.08.2018. He stated that he was aware of the upcoming visit of the appellant in connection with the meeting with distributors of HMC. He also stated that he had asked Amit Bali to accompany the appellant and make necessary arrangements to organise the meetings and since HMC was a top client of SEMPL, it looks after the accommodation, transportation and arrangements for the official meetings. Hemant Dahiya also stated that it was the regular practice for SEMPL staff to carry foreign currency for meeting the expenses of the client. According to Hemant Dahiya, there was an oral agreement between HMC and SEMPL for organizing events and it was the responsibility of SEMPL to ensure compliance of Acts/ Statues, including Customs Act, FEMA, Income Tax Act and Companies Act while executing the project abroad or in India. Hemant Dahiya further clarified that expenses incurred by SEMPL while executing the project were included in the Bills raised to HMC and HMC paid the amount.
24. K.R. Raman, the Finance Head of SEMPL, in his statement made on 21.08.2018 stated that on 17.08.2018 he had received a call from the Client Servicing Team regarding the request for funds to organize events for HMC abroad. He further stated that the unused currency handed over by the staff of SEMPL when returning from foreign events got accumulated in the office and the same was given to Amit Bali to meet the expenses. Regarding the amount of foreign currency he stated that since information regarding the event was received on 17.08.2018, it was not possible to make online transactions for bookings and others expenditure and so it was decided to give the 31 C/50497/2022 foreign currency kept in the company account to Amit Bali. This currency was handed over to Amit Bali by Girijesh Kashmira, Cashier of SEMPL. To the query as to whether the payments for the events that are organised are received, K.R. Raman stated that bills are raised in respect of the expenses together with the service charges and the payment is made to SEMPL through NEFT/Cheques.
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 during his business travel and that he was not aware that Amit Bali was carrying foreign currency. He was also specifically asked that in the statement made on 20.08.2018 Amit Bali had stated that the seized currency belonged to him (the appellant), to which he replied that he did not know as to why Amit Bali had made such a statement and reiterated that the seized foreign currency did not belong to him.
27. The aforesaid statements made under section 108 of the Customs Act give credence to the factual averments made by the appellant regarding the contractual arrangement between HMC and SEMPL and the fact that the foreign currency did not belong to the appellant and in fact belonged to SEMPL, which currency was in the possession of Amit Bali for meeting the expenses to be undertaken. It 32 C/50497/2022 also transpires that SEMPL would raise invoices for such expenses together with its service charge and thereafter payments were made by HMC. The actual owner of the foreign currency having been identified, the concept of „beneficial owner‟ does not arise. The Commissioner (Appeals), therefore, was not justified in reversing the finding recorded by the Additional Commissioner that the concept of „beneficial owner‟ would not arise in the facts and circumstances of the case.
28. It further transpires that HMC had arranged SEMPL as the service provider for the event management outside India and it was the responsibility of SEMPL to acquire foreign exchange which was acquired by SEMPL and handed over to Amit Bali for discharge of the contractual obligation of organising and arranging meetings. The Commissioner (Appeals) has merely on conjectures and surmises assumed the liability of the appellant in relation to the export of foreign currency.
29. The foreign exchange for corporate purposes has wrongly been treated as personal expenses merely because the appellant is the Chairman and Managing Director of HMC, which had organized, through SEMPL, events and meetings as part of its marketing and promotional activities. The meetings and events would benefit SEMPL and its business and it would not be correct to hold the appellant as the „beneficial owner‟.
30. This apart, the acquisition and drawl of foreign exchange is integrally connected to the purpose of use thereof and the examination of the use and purpose would fall within the domain of the authorities that regulate the acquisition and/or drawl of foreign 33 C/50497/2022 exchange and not within the jurisdiction of the Customs Authorities, which are concerned only with the carrying out of India of the foreign exchange. The acquisition, possession, retention and use of foreign exchange may fall within the jurisdiction of an authority under FEMA.
31. Learned authorised representative appearing for the department has raised a primarily objection that the appeal before the Tribunal is not maintainable under section 129A of the Customs Act for the reason that the first proviso to section 129A provides that no appeal shall lie to the appellate Tribunal and the appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order, if it relates to any goods imported or exported as baggage. It would, therefore, be necessary to reproduce the relevant provisions of section 129(A) of the Customs Act and they are as follows:
Section 129A. Appeals to the Appellate Tribunal (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order-
(a) a decision or order passed by the Principal Commissioner of Customs or Commissioner of Customs as an adjudicating authority;
(b) an order passed by the Commissioner (Appeals) under section 128A;
(c) an order passed by the Board or the Appellate Commissioner of Customs under Section 128, as it stood immediately before the appointed day;
(d) an order passed by the Board or the Principal Commissioner of Customs or Commissioner of Customs, either before or after the appointed day, under section 130, as it stood immediately before that day:
Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to, -
(a) any goods imported or exported as baggage; 34
C/50497/2022
(b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination;
(c) payment of drawback as provided in Chapter X, and the rules made thereunder:
Provided Further: xxxxxxxxxxx
32. A bare perusal of the aforesaid section 129A of the Customs Act indicates that an appeal shall not lie to the Tribunal if the order said to be assailed pertains to goods imported or exported as baggage.
33. Baggage has been defined under section 2(3) of the Customs Act as follows:
"2(3): „baggage‟ includes unaccompanied baggage but does not include motor vehicles;"
34. Goods have been defined under section 2(22) of the Customs Act as follows:
"2(22): "goods" includes-
(a) Vessels, aircrafts and vehicles;
(b) Stores;
(c) Baggage;
(d) Currency and negotiable instruments; and
(e) Any other kind of movable property;"
35. The issue as to whether an appeal would be maintainable or not before the Tribunal came up for examination before the Tribunal in Commissioner of Customs, Kolkata vs. Vinod KR. Shaw7. The revenue had filed an application for rectification of mistake in the final order dated 15.05.2002 passed by the Tribunal for the reason that the Tribunal had no jurisdiction to decide a matter relating to
7. 2003 (154) E.L.T. 205 (Tri.- Kolkata) 35 C/50497/2022 confiscation of currency seized in view of the provisions of section 129A (1) of the Customs Act. This contention of the revenue was not accepted by the Tribunal and the relevant portion of the order is reproduced below:
"2. xxxxxxxxx. I agree with the appellants‟ contention that the provisions of Section 2(22) of the Customs Act which defines the goods makes a clear distinction between the baggage and currency. If the Indian Currency is included in the expression „baggage‟, there was no need to define the currency separately. I also find force in the appellants‟ contention that the charges against the appellants are under the provisions of Section 113(d) i.e. for misdeclaration. As such, I hold that the Tribunal was having jurisdiction to decide the matter. No merits are found in the Revenue‟s application and miscellaneous application is accordingly rejected."
36. Thereafter, the matter was carried to the High Court by the Revenue and the Calcutta High Court in Commissioner of Customs vs. Vinod Kumar Shaw & Anr.8 accepted the contention that the appeal would be maintainable before the Tribunal. The observations of the Calcutta High Court are as follows:
"Having heard the respective contentions, the point which has fallen for consideration in this matter is whether the learned Tribunal was competent to entertain, hear and decide the appeal under section 129A when the currency notes were seized and on the ground that the said currency notes were in baggage.
Therefore, we set out the definition of goods as contained in section 2(22)(d) of the Act as being "currency and negotiable instruments".
From a plain reading of the said section, it appears that the goods include varieties of items. Currency and
8. CUSTA No. 12 of 2003 decided on 14.12.2010 36 C/50497/2022 negotiable instrument are two of the items and baggage is another separate item. Therefore, if any of the items is sought to be exported, then the application of the said proviso is possible. No doubt, here the question of jurisdiction is relatable to the question of fact. Factually in the miscellaneous application, it is mentioned that the baggage contained currency. According to us, the baggage and currency are different and when we read the definition of baggage separately, it would appear that the baggage includes unaccompanied baggage but does not include motor vehicles. Here, this baggage is completely different from the currency notes. Therefore, the learned Tribunal has not decided wrongly that baggage can be synonymous with the currency notes though Smt. Sarkar wants to persuade in other way. When the case proceeds on the basis of baggage it has to be understood whether the subject matter was baggage or not. The subject matter was Indian currency.
We therefore uphold the decision of the learned Tribunal."
37. The Ahmedabad Bench of the Tribunal in Rajesh Kumar Ishwar Parikh vs. C.C.- Ahmedabad 9 also examined this issue relating to maintainability of the appeal before the Tribunal and held that that the appeal would be maintainable. The observations are as follows:
"(A) As regard the maintainability of appeal before this tribunal I find that this tribunal has considered the very issue in the following judgments:-
Shambhunath Rana vs. Commissioner of Customs, Kolkata, 2003 Taxman 1152 (Kolkata-Cestat); Pankaj Kumar Tripathi vs. Commissioner of Customs, Mumbai, 2005 Vijay Hemandas Java vs. Commissioner of Customs, Mumbai, 2005 (9) TMI 361 (Cestat-Mumbai); and
9. Customs Appeal No. 10501 of 2019 decided on 11.12.2020 37 C/50497/2022 Commissioner of Customs, Kolkata vs. Vinod Kr.
Shaw, 2002 (12) TMI 390 (Cestat-Kolkata) 9.1 In view of the above judgment there is no doubt that since the issue is of export of currency which is nothing but goods, this tribunal does have jurisdiction to entertain the present appeals."
38. There is, therefore, no force in the contention advanced by the learned authorised representative appearing for the department that this appeal would not be maintainable before this Tribunal.
39. In view of the fact that the appellant is not a „beneficial owner‟ defined under section 2(3A) of the Customs Act, the order dated 30.07.2021 passed by the Commissioner (Appeals) that imposes penalty and fine upon the appellant treating the appellant as a „beneficial owner‟, cannot be sustained.
40. The order dated 30.07.2021 passed by the Commissioner of Customs (Appeals) is, accordingly, set aside and the appeal is allowed.
(Order Pronounced on 28.03.2022) (JUSTICE DILIP GUPTA) PRESIDENT (P. ANJANI KUMAR) MEMBER (TECHNICAL) JB