2002 (5) TMI 129 - AT - Customs

Summary

Issues:
Penalty imposed under Section 114 of the Customs Act on two individuals for smuggling foreign currency.

Analysis:
1. Role of A1 and A2:
- A1 was found in possession of foreign currency in his flat, leading to the penalty.
- A2 provided Indian currency to A1 for purchasing foreign currency.
- Evidence indicated A1's involvement in smuggling foreign currency through Air India pilots.

2. Search and Seizure:
- Foreign currency was found in A1's flat in a wardrobe, with no evidence of illicit possession.
- A1's claim of the flat being leased to another person was rejected due to his presence during the seizure.
- A1's retracted statement was corroborated by another individual's statement regarding past smuggling activities.

3. Confiscation under Section 113(d):
- The attempt to smuggle out foreign currency was analyzed under Section 113(d) for liability of confiscation.
- The movement of foreign currency to A1's flat did not constitute an attempt to export under the law.
- The collection and storage of foreign exchange for smuggling out was considered as preparation, not an attempt.

4. Legal Interpretation:
- The distinction between preparation, intention, and attempt in exporting goods was discussed.
- The abortion of preparation or intention to export can occur due to various reasons, not necessarily due to law enforcement actions.
- The alleged attempt to export the foreign currency was not considered foiled by the seizure, indicating a change of mind or external factors.

5. Decision and Conclusion:
- The Tribunal found no grounds to uphold the penalty or confiscation under Section 113(d) of the Customs Act.
- As a result, the penalty imposed on A1 and A2 was set aside, and the appeals were allowed.

This detailed analysis of the judgment highlights the key legal aspects, evidence evaluation, and interpretation of relevant sections of the Customs Act in determining the penalty for smuggling foreign currency.