2006 (12) TMI 378 - AT - Customs

Summary

Issues Involved:

1. Legality of the confiscation of travellers cheques under Section 113(d), (e), and (i) of the Customs Act, 1962.
2. Applicability of Foreign Exchange Management Act (FEMA), 1999, and related regulations.
3. Imposition of penalties under Section 114 of the Customs Act, 1962.
4. Jurisdiction of Customs authorities over the case.

Issue-wise Detailed Analysis:

1. Legality of the confiscation of travellers cheques under Section 113(d), (e), and (i) of the Customs Act, 1962:

The Tribunal examined whether the confiscation of travellers cheques worth US $ 105,000 was justified under Section 113(d), (e), and (i) of the Customs Act, 1962. The Show Cause Notice proposed confiscation under these sections, asserting that the travellers cheques were concealed and not declared, thus violating customs regulations. However, the Tribunal found that the travellers cheques were lawfully issued by authorized money exchangers and were not concealed, as they were in blue pouches received from the money exchangers. The Tribunal concluded that Section 113(d) was not applicable since the currency was not prohibited, and Section 113(e) did not apply as there was no concealment. Section 113(i) was also deemed inapplicable as the currency had been declared and was not dutiable or prohibited.

2. Applicability of Foreign Exchange Management Act (FEMA), 1999, and related regulations:

The Tribunal analyzed whether the transactions violated FEMA regulations. According to Regulation 7(2)(ii) of the Foreign Exchange Management (Export and Import of Currency) Regulations, 2000, any person may take or send out of India foreign exchange obtained from an authorized person in accordance with the Act's provisions. The Tribunal found that the travellers cheques were obtained lawfully under the FEMA regulations and RBI guidelines. The adjudicating authority's reliance on Section 3(3) of the Foreign Trade (Development & Regulation) Act, 1992, and Section 3 of FEMA was misplaced as these sections did not apply to the case. The Tribunal noted that the foreign exchange was obtained through legal channels and was intended for business purposes, thus complying with FEMA regulations.

3. Imposition of penalties under Section 114 of the Customs Act, 1962:

The Commissioner had imposed penalties on the individuals involved under Section 114 of the Customs Act, 1962, for allegedly abetting the smuggling of foreign currency. The Tribunal found that the penalties were unjustified as the travellers cheques were lawfully obtained and there was no violation of FEMA regulations. The Tribunal highlighted that the confiscated currency was not prohibited and the transactions were conducted through authorized dealers. Consequently, the penalties imposed on the appellants were set aside.

4. Jurisdiction of Customs authorities over the case:

The Tribunal addressed the argument that the Customs authorities had no jurisdiction to inquire into the utilization of the foreign exchange released to the passengers. The appellants argued that the FEMA authorities were the appropriate body to investigate such matters and that no action was being contemplated by FEMA authorities. The Tribunal agreed, stating that the Customs authorities were not empowered to question the business decisions or motivations behind the lawful procurement of foreign exchange. The Tribunal emphasized that the foreign exchange was obtained in compliance with FEMA regulations and RBI guidelines, and thus, the Customs authorities had no grounds for confiscation or penalties.

Conclusion:

The Tribunal concluded that the confiscation of the travellers cheques and the imposition of penalties were not supported by law. The Tribunal ordered the return of the confiscated currency and set aside the penalties imposed on the appellants, providing consequential relief. The judgment emphasized that the transactions were lawful under FEMA regulations and the Customs authorities had overstepped their jurisdiction in the matter. The appeals were allowed, and the confiscated currency was ordered to be returned to the appellants.