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TMI Blog1991 (9) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Babul Banik at 5, Baithak Khana 1st Lane, Calcutta-9 on 27-11-1984 in pursuance of a search warrant dated 26-11-1984 bearing No. 109/84 issued by the Assistant Collector of Customs (Preventive). On searching the premises a total amount of Bangladesh Taka to the extent of 1,80,750 BDT and Indian currency of Rs. 91,950/- were recovered. Out of these Bangladesh Takas, 400 Bangladesh Taka were recovered from the pocket of Kiran Chandra Sarkar and Indian currency of Rs. 40,000/- was also seized from his possession. Indian currency of Rs. 45,000/- was also seized from Provash Chandra Dey. The statements of Babul Banik and both the appellants were recorded under Section 110 of the Customs Act, 1962 (hereinafter, to be referred to as the Act , for short) and thereafter show cause notices were issued to the appellants requiring them to show cause as to why the Bangladesh Taka and the Indian Currency should not be confiscated as they were illegally imported into the country in violation of Section 13(1) of Foreign Exchange Regulation Act, 1973 (hereinafter, to be referred to a FERA for short) and in contravention of Section 3(1) of Import/Export (Control) Act, 1947, read with Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also pointed out that it is only when the foreign currency exceeds one thousand dollars, the same is required to be declared before the authorities. He also pointed out that the only restriction is that this foreign currency could not be sold by a person to any other person and it can only be encashed through authorised dealers of foreign exchange. It was, therefore, pointed out that there is absolutely no case made out by the department for penalising the appellants under Section 112 of the Act and there is also no case made out by them to show that the Indian currency found from them was the sale proceeds of foreign currency, i.e. Bangladesh Taka. He also pointed out that with respect to 400 Bangladesh Taka found in the possession of Kiran Chandra Sarkar, no offence is made out. He, therefore, stated that the appeals may be allowed. 5. The learned Departmental Representative Shri B.B. Sarkar pointed out that Babul Banik had given a statement on the spot stating that a little prior to the seizure of the amount in question, the above captioned appellants had given him the Bangladesh Taka and they have exchanged the Bangladesh Taka for Indian currency. He, therefore, pleaded th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the provisions of that Act shall be effected accordingly. Therefore, he contended that the Customs Officers have jurisdiction in such cases. He also brought to our notice Section 77 of F.E.R.A. wherein it is mentioned that the Officers mentioned in Clauses A to E are empowered to assist the officers of Enforcement. In Clause A , all the Officers of the Customs are included. He also pointed out that it might be true that foreign currency can be brought in any amount into India, but the same could be exchanged only through the authorised dealers and not in a way the appellants have done in the present case. 8. In a rejoinder, Shri Roy Choudhury contended that in the adjudication order, the learned Collector has stated that in the shop of Babul Banik, utensils are also sold. Therefore, he contended that the case of Kiran Chandra Sarkar that he went to the shop for purchasing utensils have to be accepted. As far as Provash Chandra Dey is concerned, Shri Roy Choudhury pointed out that he has stated in his statement that he had gone to the shop of Babul Banik for purchasing a Chadar. He also pointed out that the jurisdiction of the Collector of Customs extends only to such cases whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was indeed the case. No explanation has been offered for the 400 Bangladesh Taka from Kiran Chandra Sarkar. The advocates plea that Rs. 40,000/- seized from him with the stamp of Chartered Bank on it have been legitimately obtained from that Bank is not sustainable as neither Sarkar nor his brother-in-law had been to the Chartered Bank. Further argument offered on his behalf that his money was intended to be used for purchasing clothes as part of Sarkar s business is contradictory to the recorded statement of Sarkar s brother-in-law who says that he had given Rs. 35,000/- to Sarkar to buy utensils. Babul Banik s shop does not deal in utensils. Provash Chandra Dey has not been able to explain the source of Rs. 45,000/- seized from him. The plea that he is a bidi merchant and dropped into Babul Banik s shop to buy some clothes for his personal use is indeed a thin one. He has not been able to explain the source of his money. On the contrary, Babul Banik has claimed straightway that Provash Chandra Dey has also exchanged Bangladesh Taka with him a little prior to the Customs raid for Indian currency. 12. A perusal of the same goes to show that as far as Provash Chandra Dey is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the very fact that the appellant Kiran Chandra Sarkar was found in possession of 400 Bangladesh Taka goes to show that the statement of Babul Banik that he had given Bangladesh Taka to him becomes highly suspicious. However, the brother-in-law of Kiran Chandra Sarkar had given a statement that he had given Rs. 35,000/- to Kiran Chandra Sarkar for the purchase of utensils. But the adjudicating authority found that the currency notes found in the possession of appellant Sarkar was in four bundles, each containing Rs. 10,000/-and the same were issued by Chartered Bank with their seal on the flap of the bundles. But it was stated in the order that neither Kiran Chandra Sarkar nor his brother-in-law had been to the Chartered Bank for drawing this amount. On that count, this statement was disbelieved. If this is so, no investigation was made to find out whether these four bundles of Rs. 10,000/- was encashed by Babul Banik from Chartered Bank. If some investigation was done in this matter and it was revealed that Babul Banik had withdrawn four bundles consisting of Rs. 10,000/- each from Chartered Bank then that would have been a circumstance which would have corroborated the version ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Sarkar are hereby set aside. The imposition of penalty of Rs. 1,000/- against the appellants under Section 112 of the Customs Act are also set aside. Both the appeals stand disposed of in terms of the above order. OFFICIAL CORRIGENDUM TO Stay Order No. 107 and Final Order No. 517/91-C dated 01-11-1991 The following typographical errors may be corrected in 1992 (57) E.L.T. 142 (Tribunal) in the case of South India Viscose Ltd. v. Collector of Central Excise Page 143 Para 4 In the eighth line of para 4, instead of the sentence - Court observed that goods produced as to have a distinguished name, character of goods waste and scrap is in the nature of rubbish and has no distinguishing name, character or use, therefore, Court held that no duty can be levied on such waste/scrap . the following sentence may be read as under - Court observed that goods produced has to have a distinct name, character or use and further held that waste and scrap is in the nature of rubbish and has no distinctive name, character or use, therefore, Court held that no duty can be levied on such waste/scrap Page 143 Para 5 In the last line of para 5, one word not is to be added before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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