1998 (6) TMI 352 - Commissioner - Customs

Issues:
1. Confiscation of foreign currencies under Customs Act and FERA.
2. Imposition of penalty under Customs Act.
3. Appeal against the order of confiscation and penalty.
4. Reduction of penalty amount.
5. Legal provisions and notifications related to foreign currency limits.
6. Ignorance of Reserve Bank of India notification.
7. Plea for release of currency and waiver of penalty.
8. Consideration of circumstances and evidence in the case.
9. Violation of FERA provisions and order of confiscation.
10. Redemption of impugned currencies and waiver of penalty.

Issue 1: Confiscation of foreign currencies under Customs Act and FERA

The case involved the confiscation of foreign currencies from an individual under Section 113(d) of the Customs Act, 1962, read with Section 67 of the FERA, 1973. The individual was found in possession of various foreign currencies exceeding the prescribed limit, leading to the confiscation under suspicion of attempted smuggling out of India.

Issue 2: Imposition of penalty under Customs Act

In addition to the confiscation, a penalty of Rs. 50,000 was imposed on the individual under Section 114(1) of the Customs Act, 1962. The penalty was based on the violation of customs regulations regarding the possession and declaration of foreign currencies beyond the permissible limit.

Issue 3: Appeal against the order of confiscation and penalty

The individual filed an appeal challenging the impugned order of confiscation and penalty before the Commissioner of Customs (Appeals), Calcutta. The appeal raised various arguments regarding the circumstances of possession, lack of awareness of regulatory changes, and the absence of evidence linking the individual to smuggling activities.

Issue 4: Reduction of penalty amount

During the appeal process, the Commissioner ordered a reduction in the pre-deposit penalty amount from Rs. 50,000 to Rs. 10,000. The appellant complied with the reduced deposit requirement, leading to further proceedings and personal hearings represented by legal counsel.

Issue 5: Legal provisions and notifications related to foreign currency limits

The case highlighted the significance of Reserve Bank of India notifications, specifically No. 168/95-RB dated 5-6-1995, which imposed restrictions on the amount of foreign currency that could be carried without declaration. The appellant argued ignorance of the notification due to lack of proper dissemination and public awareness of the regulatory changes.

Issue 6: Ignorance of Reserve Bank of India notification

The appellant emphasized the lack of publicity and dissemination of the Reserve Bank of India notification, leading to confusion regarding the revised foreign currency limits. The appellant's plea of ignorance was supported by references to judicial orders and publications highlighting the delayed awareness of the regulatory changes.

Issue 7: Plea for release of currency and waiver of penalty

The appellant's defense included explanations related to the possession of multiple foreign currencies due to her travel agency business and frequent international travels. The plea focused on requesting the release of confiscated currencies and the waiver of the imposed penalty based on the circumstances and lack of intentional wrongdoing.

Issue 8: Consideration of circumstances and evidence in the case

The Commissioner considered the facts, submissions, and evidence presented during the personal hearings and written submissions. The lack of evidence linking the appellant to smuggling activities, coupled with the circumstances of delayed notification awareness and absence of concealment of currencies, influenced the decision-making process.

Issue 9: Violation of FERA provisions and order of confiscation

Despite acknowledging the violation of FERA provisions due to non-declaration of foreign currencies, the Commissioner recognized the appellant's lack of awareness and the absence of malicious intent. The order of confiscation was upheld, but a lenient view was taken, offering the option to redeem the confiscated currencies for re-export on a redemption fine of Rs. 5,000 while waiving the penalty.

Issue 10: Redemption of impugned currencies and waiver of penalty

In the final decision, the Commissioner confirmed the confiscation of the foreign currencies but allowed for their redemption for re-export upon payment of a redemption fine. The penalty was waived considering the circumstances, lack of intentional wrongdoing, and the appellant's plea of ignorance regarding the regulatory changes.

This summary provides a detailed analysis of the legal judgment, covering all the relevant issues and considerations involved in the case.

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