2018 (9) TMI 459 - HC - Customs

Confiscation - Indian Currency - prohibited goods or not? - contention of the petitioner is that, the first respondent, in the impugned order has accepted that, there is no prohibition to take Indian currency outside the country, but, it is only a restrain - Held that - It is settled legal principle that the term prohibition shall include restrain . Section 2(33) of the Act defines the term prohibited goods to mean any goods, which is not only prohibited under the Act, or prohibition under any other law, which is in force - Admittedly, there is a prohibition for taking Indian currency outside the country, as per the Regulations framed under the FEMA. Therefore, a person intending to take currency outside the India beyond the threshold limit of ₹ 5,000/- is required to obtain prior permission. Admittedly, the petitioner did not obtain such prior permission before carrying Indian currency to the tune of ₹ 14,00,000/-. Thus, the currencies, which were seized from the petitioner and confiscated by the order passed by the third respondent are undoubtedly prohibited goods, and the power exercised by the third respondent is valid and proper - petition dismissed - decided against petitioner.

Summary

Issues Involved:
Challenge to order under Section 129DD(1) of the Customs Act, 1962 for confiscation of Indian currency under Section 113(d) read with FEMA regulations without prior permission.

Detailed Analysis:

1. Challenge to Confiscation Order:
The petitioner challenged the order passed under Section 129DD(1) of the Customs Act, 1962, affirming the confiscation of Indian currency under Section 113(d) read with FEMA regulations. The third respondent had ordered the confiscation of Indian currency amounting to ?14,00,000 with an option for redemption on payment of a fine and penalty. The first and second respondents confirmed the findings, with a partial reduction in the redemption fine by the second respondent.

2. Interpretation of Prohibited Goods:
The petitioner argued that Section 113(d) could not have been invoked as there was no prohibition on taking Indian currency outside the country. However, the court disagreed, citing the definition of "goods" in Section 2(22)(d) of the Act, which includes currency. The term "prohibited goods" in Section 2(33) refers to goods subject to prohibition under the Act or any other law. The court clarified that prohibition includes restraint, and as per FEMA regulations, there is a prohibition on taking Indian currency outside the country without prior permission.

3. Validity of Confiscation:
The court affirmed that there was a prohibition on taking Indian currency beyond ?5,000 outside India without prior permission. Since the petitioner did not obtain such permission for carrying ?14,00,000, the confiscation under Section 113 of the Act for improperly exporting goods was justified. The court upheld the findings that the petitioner attempted to export the currency without permission, making it prohibited goods subject to confiscation.

4. Judicial Review and Interference:
The court emphasized that it would not re-examine the factual findings already confirmed by the lower authorities. Exercising jurisdiction under Article 226 of the Constitution of India, the court noted the limited scope of interference in such orders. As the petitioner failed to establish a case for challenging the impugned orders, the court dismissed the writ petition without costs.

In conclusion, the court upheld the confiscation of the Indian currency as valid, considering the prohibition under FEMA regulations and the lack of prior permission for exporting the currency. The court's decision was based on the legal principles regarding prohibited goods and the limited scope of interference in factual findings by higher authorities.