2020 (12) TMI 428 - AT - Customs

Maintainability of appeal - Smuggling - Foreign Currency - Baggage Rules - Absolute Confiscation - release on payment of redemption fine or not. Maintainability of appeal - HELD THAT - Since the issue is of export of currency which is nothing but goods, this tribunal does have jurisdiction to entertain the present appeals - Reliance can be placed in the case of VIJAY HEMANDAS JAVA VERSUS COMMISSIONER OF CUSTOMS (AIRPORT), MUMBAI 2005 (9) TMI 361 - CESTAT, MUMBAI . Absolute Confiscation - redemption of goods or not - HELD THAT - There is no dispute of the fact that both the appellants were taking out foreign currency of USD UAE Dirhams. The confiscated currencies were attempted to export without the approval of RBI - As per Rule 5 of FEMA Regulation, 2000 it is clear that export of foreign currency can be made only by the permission of the Reserve Bank of India. It is also found that the appellant could not prove the authorized source of procuring the foreign currency therefore, the foreign currency seized from the appellants are liable for confiscation. Redemption Fine - HELD THAT - The discretion is provided for payment of fine in lieu of confiscation. Therefore, it is not mandatory that in all the cases the absolute confiscation should be made. In the present case, the appellants are engaged in the business and as per their statement which is undisputed fact that they are running a manufacturing unit for manufacture of PP/HDPE woven bags. They have also stated in their statement that the foreign currency were being taken for the business purpose. Also, the export of foreign currency is allowed subject to permission of RBI. The issue that whether confiscation of goods should be made absolute or conditional such as redemption on payment of fine has to be decided on the basis of facts of each case. It is also not in dispute that the judgments cited by the learned counsel hold that the foreign currency can be released on payment of fine in lieu of confiscation. Therefore, considering the facts and circumstances of present case the appellant is entitle for release of foreign currencies on payment of fine. The confiscated foreign currencies has to be released on payment of fine - the penalty imposed on both the appellants are very harsh and deserves to be reduced substantially - Appeal allowed in part.

Summary

Issues Involved:
1. Maintainability of appeal before the tribunal.
2. Liability of the foreign currency for confiscation.
3. Possibility of releasing confiscated currency on payment of fine versus absolute confiscation.

Issue-wise Detailed Analysis:

I) Maintainability of Appeal Before the Tribunal:
The tribunal considered previous judgments, including SHAMBHUNATH RANA Vs. COMMISSIONER OF CUSTOMS, and confirmed that the issue of export of currency, which is classified as goods, falls within its jurisdiction. Thus, the appeal is maintainable before the tribunal.

II) Liability of the Foreign Currency for Confiscation:
The appellants were found with foreign currency exceeding permissible limits without RBI approval, violating Rule 5 of the Foreign Exchange Management (Export & Import of Currency) Regulations, 2000. The currency was attempted to be exported without required permissions, making it liable for confiscation under Section 113(d) and (e) of the Customs Act, 1962. The appellants failed to prove the authorized source for procuring the foreign currency, further justifying the confiscation.

III) Possibility of Releasing Confiscated Currency on Payment of Fine versus Absolute Confiscation:
The tribunal addressed whether the confiscated currency could be released on payment of a fine instead of absolute confiscation. Section 125 of the Customs Act provides discretion for payment of fine in lieu of confiscation. The tribunal noted that the appellants were engaged in legitimate business activities and had shown cash in hand in their partnership firm's books, indicating a source of funds for the foreign currency. The appellants' failure was not obtaining RBI permission, not any malafide intention. Given these circumstances, the tribunal decided that absolute confiscation was too harsh. Instead, it allowed the release of the foreign currencies on payment of a fine of ?2 Lacs for Mr. Rajesh Kumar Ishwar Parikh and ?1 Lac for Mr. Ashish Kumar Dahyabhai Patel.

Penalty Reduction:
The tribunal also considered the penalties imposed as harsh and reduced them substantially. The penalty for Mr. Rajesh Kumar Ishwar Parikh was reduced to ?1 Lac, and for Mr. Ashish Kumar Dahyabhai Patel, it was reduced to ?50,000.

Conclusion:
The appeals were partly allowed, with the confiscated foreign currencies ordered to be released on payment of specified fines and the penalties reduced as detailed above.

(Pronounced in the open court on 11.12.2020)