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TMI Blog1986 (2) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... ency. But he was acquitted from the charge of attempted export by the Magistrate. Miss Kolhe drew our attention to para 9 in particular of the Magistrate s order. Relying on the Magistrate s finding she submitted that the act of the appellant did not amount to an attempted export as he did not have any such intention. The Magistrate had further observed that even if the inculpatory statement of the appellant was to be accepted that he was to give the currency to Shri Sherzada it could not amount to an attempt to export as Shri Sherzada could have disposed of the currency in India. While Shri Sherzada was employed on the foreign ship and the ship was to sail on the next day i.e. 20-3-1981 the appellant could not know what Shri Sherzada would have done with the money. Miss Kolhe read out the appellant s statement. She further argued that the appellant did not part with the money and hence there was no attempted export of the same. She further stated that the Advocate of the appellant had waived the issue of the show cause notice before the adjudicating officer, but except for his own statement there was no evidence that the appellant was going on board to meet Shri Sherzada for handi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Maneklal Pokhraj Jain and others v. Collector of Customs (Prev.) dated 12-5-1985 in support of his argument. Shri Senthivel stated that the panchnama of the seizure of the recovery of the Indian and foreign currency from Shri Pereira and Shri Ibrahim N. Wangad had been made and he read out the relevant portion relating to the panchnama of the seizure of the Indian and foreign currency from the appellant. Shri Senthivel contended that the appellant was found at the gangway leading to the vessel and this would show that he was about to board the vessel. There was thus a nexus between the amount of currencies seized and the value of un-declared contraband goods with the crew member Shri Sherzada. As per the statement of the appellant, the money was intended for the purchase of the goods belonging to Shri Sherzada. Since the vessel was to sail the next morning to the Persian Gulf, Shri Senthivel contended that the appellant had attempted to export the currency in question. He read out Section 113(a) of the Customs Act and also referred to the definition of goods in Section 2 (22) of the Customs Act to contend that goods included currency . Shri Senthivel also referred to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no attempted export as Shri Sherzada could have disposed of the currency in India itself, it is difficult to speculate on what could have been the outcome if the currency had been taken on board and given to Shri Sherzada. Shri Pereira was a fireman of the BPT and he was well familiar with the shipping in port. He would have known that the ship would sail next morning to a place outside India and if he gave the money to the crew member, the money would have most probably been taken away by the crew member on departure. Therefore, in the normal circumstances, it is legitimate to accept that there was an attempt on the part of the appellant to export the Indian currency through the above mentioned person. The confiscation of the currency under Section 113(d) is, therefore, in order. At this stage, it is not possible to accept the request of the Advocate to give up the grounds of appeal relating to the confiscation of the Indian currency. It is seen that all along in the course of the proceedings right up to the stage of Revision Petition before the Government of India the appellant had been agitating the question of confiscation of the currency. Giving up the claim in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven to him by a person named Ramesh Malbari who was staying somewhere near Vashinaka in Chembur. He, however, stated that he did not know the residential address. He further stated that he had been asked to hand over the currencies to a crew member on board the ship M.T. Gambhira. He also knew the name of the crew member as Mr. Sherzada. It was also stated by the appellant that he was to get a commission of Rs. 400/- from Shri Ramesh Malbari for delivering the currencies to Mr. Sherzada. The appellant also stated in his statement that his job was only to hand over the money and he was not going to the vessel to buy any contraband goods, nor Mr Ramesh Malbari had asked him to buy anything on board. 8. The statement of Shri Sherzada was also recorded under Section 108 on 20-3-1981. Among other things, Shri Sherzada stated that the customs officers came to his cabin with the appellant and searched his possession. They found him carrying 6 sony cassette recorders which were in excess of his personal property declaration. The officers seized the said 6 recorders under a panchnama in the presence of two independent panchas. The cassette recorders were valued at Rs. 16,200/- at local ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is accepted as true, the currency seized from him cannot be confiscated or penalty cannot be levied on him since he committed no offence. She urged that possessing of Indian currency or U.S. dollars 400 does not violate any law. Section 113 (d) under which the Asstt. Collector has passed the order has no application. Miss Kolhe contended that according to the statement of the appellant he was apprehended at the jetty. According to the officers of the customs who accosted him the appellant was found boarding the ship and therefore the allegation contained in the panchnama that the appellant was inside the ship is toally erroneous. Miss Kolhe further urged that the appellant did not part with the currency. He had not boarded the ship. Therefore it cannot be said that there was any attempted export of the Indian or foreign currency. She therefore prayed that the order of confiscation as well as the levy of penalty may be set aside. 12. When questioned by the Bench as to how she could contend regarding setting aside the confiscation of the currencies when the currencies did not belong to the appellant but belong to one Ramesh Malabari, according to the statement of the appellant, Mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant is to be believed he was only a carrier of the currency. He did not know the purpose for which he was to hand over the currency to a crew member. He however, made it clear that he was not boarding the ship to purchase any contraband nor was he directed by Shri Ramesh Malbari to purchase any contraband on board the vessel. 16. The question that arises for consideration is whether it could be said that there was attempted export of currency by the appellants. It is no offence to possess Indian currency and U.S. dollars of 400/-. Admittedly the appellant was not to sail in the vessel Ghambira. As stated earlier excepting the appellant s version there is no other evidence. The version of the appellant was to hand over the currency to crew member at the instance of one Ramesh Malbari. If the appellant had handed over the currency probably Sherzada would have exported the currency out of India. The export or attempted export would have been by Shri Sherzada and not by the appellant. At best it could be said that the appellant would have facilitated Sherzada in the attempted export of the currencies if he had handed over the currency to Shri Sherzada. The act of the appellant fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be accepted. I have looked into the original records. The customs officer who had accosted the appellant clearly stated that Shri Wankhade was coming down the ship and the appellant was about to board the ship. The statement of the appellant was that he was apprehended while he was in the jetty. According to the customs officer after apprehension the appellant and Wankhade were taken inside the cabin of the ship. Panchas were called on the next day and therefore in the panchnama if it was stated that the appellants were found inside the ship that fact would be correct because when the panchas came the appellant was inside the ship because he was taken inside for safe custody during the previous night. 19. It is pertinent to state that no show cause notice was issued to the appellant. It was stated that the appellant had waived show cause notice. Under Section 124 of the Customs Act, no confiscation can be ordered or penalty levied unless the person is giver notice in writing informing of the grounds on which it is proposed to confiscate the goods or to impose the penalty. The said section provides that the notice can be oral, if requested by the person concerned. In the adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 21. Having regard to my above findings, I allow this appeal, set aside the orders passed by the Asstt. Collector and the Appellate Collector. The appellant be granted consequential 22. There is a difference of opinion between two Members as to whether there was an attempted export by the appellant. Therefore the matter is referred to the President for referring the following question to one or more other Member of the Appellate Tribunal. The question is whether on the facts and in the circumstances of the case, could it be said that the appellant attempted to export Indian currency of Rs. 18,300/- and U.S. dollars 400 ? 23. [per : Shri K.L. Rekhi, Member (T)]. - As there was difference of opinion between the two learned Members who comprised the Bench, the President assigned the matter to me for disposal under Section 129C(5) of the Customs Act, 1962. 24. After due notice and making available copies of the orders already recorded by my learned brothers, I have heard both sides at Bombay today. Miss S.D. Kolhe appeared for the appellants and Shri S. Senthivel for the Department. Both sides reiterated their stand. Miss Kolhe stressed the point that the appellant was not on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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