9911796707
TMI Blog2004 (10) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... roceed to Singapore by flight No. SQ 409 on 22-11-93. They questioned the passenger, after his clearance by immigration and customs, as to whether he was carrying any Indian or foreign currencies on his person or in his baggage. Shri Makesan denied having any such thing. But, when the officers examined his baggage, six paper bundles containing foreign currencies were recovered. The search on his person also resulted in the recovery of foreign currencies. In all, 68,050 US Dollars, 3,08,500 Saudi Rials, 10,500 UAE Dirhams, 500 Quatar Rials and 100 Singapore dollars were recovered from Shri Makesan, who had not declared the said currencies to the Customs. Shri Makesan could not produce any permit of the Reserve Bank of India for export of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to the department that the seized currencies and silver granules were liable to be confiscated and penalties were liable to be imposed on Makesan, Arasu and the appellant. Therefore, a show-cause notice was issued to these three persons. The allegation levelled against the appellant was that, by dealing in foreign currencies contrary to the restriction of the Reserve Bank of India and arranging to sell the imported silver/gold and providing the sale proceeds to Shri Arasu in foreign currency for illicit export, he (appellant) had actively associated with Arasu and Ravichandran and had abetted the offence committed by Makesan and Arasu. The proposal in the show-cause notice to penalise the appellant under Section 114(i) of the Customs Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase was made out against him for penalty under Section 114(i) on the basis of Arasu s statement which only indicated that the appellant had arranged for sale, in India of gold and silver licitly imported into India and that the sale proceeds were collected from the buyers in foreign currencies. No offence was involved in this activity. No incriminating material was recovered from the appellant s business/residential premises. In the circumstances, according to ld. Counsel, there was no evidence of the alleged complicity of the appellant in the attempted export of foreign currency from Chennai airport. ld. Counsel for the appellant also pointed out that no statement was recorded from the appellant. He referred to Section 13 of the Foreign Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een claimed to have been retracted through letter dated 18-5-94 of Arasu s Counsel addressed to the Commissioner of Customs. We are unable to understand as to how Arasu s statement could be retracted by his Counsel, and that too, after about six months. We shall, therefore, proceed on the basis that Arasu s statement dated 23-11-93 was never retracted. We have perused this statement, which indicates that Arasu is a graduate in Civil Engineering. Being a literate person, his statement should be literally under stood. Shri Arasu referred to the appellant s role in his statement thus: Gani s function is that he will dispose the silver/gold given to him by us and will give the sale proceeds of it in foreign currencies to us after deducting his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n active business with Arasu/Ravichandra/Thiyaga. Had Shri Gani been ignorant, he would have returned the sale proceeds in Indian currency and not in foreign currencies. The finding is to the effect that the appellant knew that the foreign currencies (sale proceeds of gold and silver) were taken out of the country by Arasu and others. We are unable to accept this finding inasmuch as Shri Arasu never stated that the appellant was aware of the sale proceeds being taken out of the country. Even if it be assumed that the appellant had any such knowledge, that is not enough to indicate mens rea on the appellant s part inasmuch as export of declared foreign currency out of India is not illegal and the Commissioner has not found that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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