2008 (1) TMI 215 - AT - Customs

Illegal import of currency of foreign origin neither applicant claim ownership of the seized currency, nor he proved that impugned currency is legally imported even in the absence of any specific & direct evidence about improper importation, particularly when no evidence is led to show that the said currency has been legally acquired from any authorised dealer in foreign exchange, we hold that absolute confiscation of the foreign currency, seized from the applicant is justified

Summary

Issues:
1. Validity of the earlier Tribunal order setting aside confiscation of foreign currency.
2. Interpretation of High Court's order and its binding effect on the Tribunal.

Issue 1: Validity of Earlier Tribunal Order
The applicant filed a Miscellaneous Application challenging the earlier Tribunal order dated 15-2-2001, which set aside the confiscation of foreign currency. The Tribunal in the earlier order held that there was no evidence of illegal importation or exportation of the currency, and since the actual owner could not be identified, the person carrying the currency could only be charged as a carrier. The Department filed a Reference Application before the High Court, which held that the Tribunal was wrong in setting aside the confiscation. The High Court opined that the Tribunal's decision was not justified as the applicant did not claim ownership or provide evidence of licit acquisition of the currency. The High Court directed the Tribunal to act in accordance with its decision.

Issue 2: Interpretation of High Court's Order
The applicant argued that the High Court's order was merely a casual remark and not a legal advice on a question of law. However, the Department contended that the High Court's decision was binding on the Tribunal, as it had held that the Tribunal was not justified in setting aside the confiscation. The Tribunal, after considering the High Court's orders dated 29-10-03 and 20-5-04, found that the High Court's decision was clear and unambiguous. The Tribunal held that the High Court's directions were to be followed unless stayed or modified by a superior court. As there was no evidence of any stay or modification by a superior court, the Tribunal modified its earlier order and upheld the absolute confiscation of the foreign currency, considering the circumstances where the applicant did not claim ownership or provide evidence of licit acquisition.

In conclusion, the Tribunal modified its earlier order based on the High Court's decision, holding that the confiscation of the foreign currency was valid. The Miscellaneous Application was disposed of accordingly, following the cited decisions of the Hon'ble High Court at Calcutta.