2016 (9) TMI 415 - AT - Customs

Confiscation of seized currencies - section 113 (d), (e) and (h) of the Customs Act, 1962 - imposition of penalty - Section 114 (i) of the Customs Act, 1962 - undeclared currencies - prohibited goods - section 2 (33) - FERA Act - Held that - it is established that appellant attempted to export by carrying himself as passenger, foreign and Indian currencies without declaration to the Customs authority and without permission from RBI - the same undoubtedly liable for confiscation. Option to pay redemption fine in lieu of confiscation - Section 125 of the Customs act, 1962 - Held that - it is the discretion vested in the authority whether to allow redemption of confiscated goods on payment of fine or otherwise. The appellant admittedly tried to mislead the officers, investigating the case. The appellant at every stage given wrong statement about source of currencies. As per RBI and FEMA provision export of currencies is subject to approvals and permission. Therefore attempt of export of currencies without such approvals/permissions lead to confiscation - looking to the conduct of the appellant and nature of the offence, the denial of grant of option to appellant is justified. Appeal dismissed - decided against appellant.

Issues Involved:
1. Whether the export of undeclared currencies is 'restricted' or 'prohibited' under the Customs Act, 1962.
2. Whether the appellant should be given an option to pay a fine in lieu of confiscation under Section 125 of the Customs Act, 1962.
3. The appropriateness of the penalty imposed on the appellant.

Issue-wise Detailed Analysis:

1. Export of Undeclared Currencies:
The appellant was intercepted with undeclared currencies while traveling to Singapore. The adjudicating authority held that the export of currencies was 'restricted' and that the appellant did not have the necessary RBI permission. The appellant argued that the definition of 'prohibited goods' was erroneously invoked in the context of Section 125 and that the export of currencies was not per se prohibited. The appellant cited several precedents, including the Hon'ble Supreme Court's judgment in Escorts Ltd, which emphasized that definitions should be applied contextually. The appellant further argued that the term 'prohibited' should be construed differently in the context of Section 125, as per the judgment in UOI vs. Asian Food Industries.

2. Option to Pay Fine in Lieu of Confiscation:
The appellant contended that under Section 125 of the Customs Act, unless the importation or exportation of goods is expressly 'prohibited,' the adjudicating authority is bound to offer an option to pay a fine in lieu of confiscation. The appellant cited several judgments, including Shaik Jamal Basha vs. GOI and T Elavarasan, which held that an option to pay a fine must be given if the goods are not expressly prohibited. The appellant argued that the definition of 'prohibited goods' should not be applied in a manner that renders Section 125 redundant. The appellant also pointed out that the seized currencies were 'restricted' and not 'prohibited,' and thus, an option to redeem the currencies should have been provided.

3. Penalty Imposed:
The appellant argued that the penalty imposed was excessively high and that the adjudicating authority did not consider the appellant's conduct and the nature of the offense. The appellant cited several precedents where seized currencies were allowed to be redeemed on payment of a fine. The appellant also highlighted that the adjudicating authority's discretion should be exercised judiciously, taking into account the overall facts of the case.

Judgment:
The tribunal upheld the adjudicating authority's order of absolute confiscation of the currencies and the penalty imposed. It was established that the appellant attempted to export currencies without declaration and without RBI permission, making them liable for confiscation. The tribunal noted that Section 125 vests discretion in the authority to allow redemption of confiscated goods on payment of a fine. Given the appellant's conduct of providing misleading information about the source of the currencies and the nature of the offense, the adjudicating authority rightly exercised its discretion not to allow redemption. The tribunal found no fault in the discretion exercised by the adjudicating authority and upheld the impugned order, dismissing the appeal.

← Previous Next →