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TMI Blog2010 (9) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Act, 1962 w.r.t. imposition of penalty are also attracted as soon as the goods incur the liability to confiscation under Section 113. In view of this, the order for confiscation of currencies under Section 113 of Customs Act, 1962 and imposition of penalties under Section 114 of Customs Act, 1962 is legally correct, no denial to the violation of the Regulation 5 of the Foreign Exchange Management (Export and Import of Currency) Regulation, 2000, and there is a non-declaration of currency and for that declaration is required under Section 77 of the Customs Act, 1962, the adjudicating authority had decided the case rightly and judiciously, Government sets aside the impugned orders-in-appeal and restore the impugned order-in-original, revision application’s succeed - decided in favor of revenue. - 380/23-26/B/2008-RA - 312-315/2010-Cus, - Dated:- 3-9-2010 - Shri D.P. Singh, J. Piyush Kumar, Advocate, for the Assessee. [Order]. These four revision applications were filed by applicants Commissioner of Customs, New Customs House, Near I.G.I. Airport, New Delhi against the orders-in-appeal No. CCA/CUS/AIR/D-I/228-31/2008, dated 12-6-2008 passed by Commissioner of Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said two cash Memos No. 3141 and 3142 were for a total amount of 16300 GBP TC s only. As he could not give documentary evidence in respect of legal acquisition/possession of remaining Traveller Cheques 3500 GBP and for the purchase of 5050 GBP 50 EURO recovered in cash the said foreign currency in cash as well as the said Traveller Cheques were seized under section 110 of the Customs Act on the reasonable belief that the said foreign currency, amounting to 24850 GBP and 50 Euro were being attempted to be exported illegally and hence liable to confiscation under the provisions of Section 113 of the Customs Act. The Green coloured pouch, three plastic CD cases along with the stroller used for concealment of the said foreign currency, attempted to be illegally exported, were also seized under Section 110 of the Customs Act being liable for confiscations under Section 118 of the Customs Act. Documents as detailed in Annexure C to the panchnama were also resumed for further scrutiny. A panchnama dated 21-8-2005 to this effect was drawn on the spot and a copy of the same was given to him. 2.2 He was arrested on 26-9-2005 and remanded for judicial custody till 10-10-2005. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R.J. Trade Wing Pvt. Ltd. was imposed vide O-I-O No. 30/2006 dated 20-7-2006. 3. Being aggrieved with the O-I-O, Shri Vijay Mittal, Managing Director, M/s. Jauhari Printers (P) Ltd., 231, Chawarampur, Bhularpur, Varasani, filed his appeal before the Commissioner of Customs (Appeals), New Delhi and contested that provisions of Section 114(i) of the Customs Act read with Regulations 5 and 7 of FEMA Regulation, 2000 and Rules 3, 4 and 5 of FEMA are not within purview of the Adjudicating Authority and SCN is untenable and liable to be set aside. The Commissioner of Customs (Appeals) has decided case by way of setting aside the Order-in-Original No. 30/2006 dated 20-7-06 with the direction to hand over the case to proper authority under FEMA to decide it as per law. 4. Being aggrieved with the impugned orders-in-appeal, the applicant Commissioner has filed these revision applications on the following grounds :- 4.1 The Commissioner (Appeals) finding that payment was made by cheques for purchase of impugned Traveller s cheque is not correct inasmuch as Sh. Shailander Kumar Singh, Sr. Executive of M/s R.J. Trade Wings Pvt. Ltd., has in his statement recorded on 16-10-05, deposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered as a total prohibition and that expression does not bring within its fold the restrictions imposed by clause 3 of the Import Control Order, 1955. According to the learned counsel for the appellant clause 3 of that order deals with the restrictions of import of certain goods. Such a restriction cannot be considered as a prohibition under Section 111(d) of the Act. While elaborating his argument the learned Counsel invited our attention to the fact that while Section 111(d) of the Act uses the word prohibition , Section 3 of the Imports and Exports (Control) Act, 1947 as that statute deals with restrictions or otherwise controlling separately from prohibitions. We are not impressed with this argument. What clause (d) of Section 111 says is that any goods which are imported or attempted to be imported contrary to any prohibition referred to in that section applies to every type of prohibition . That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression any prohibition in Section 111(d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication proceedings and appeal rules are the regulations formulated by RBI in delegated legislation in accordance with the powers conferred under FEMA Act . As regards the first finding, as has been stated in sub-para (b) violation of FEMA being a violation of another Act, would ipso facto render the goods liable for confiscation under Section 113 of the Customs Act. As regards the second findings, he is accepting that under a notification, the Commissioner of Customs has the jurisdiction for adjudicating under FEMA. (e) while each legislation has a procedure in itself to deal with violations thereof, by virtue of the wording of Sections 111 and 113, violations of other laws simultaneously become violations of the Customs Act. 5. The show cause notice were issued under Section 129DD of Customs Act, 1962 asking the respondents to file their counter reply. In their counter reply dated 18-3-2009, following submissions were made :- 5.1 That the contents of para 1 as stated above wrong and denied. It is submitted that the entire payment has been made through cheque and the said payment is also shown in the Income-Tax Return of M/s. Jauhari Printers Limited. The said Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EMA powers have been vested in the customs authorities for the purpose of adjudication not under the Customs Act but under the provisions of FEMA 1999 and in accordance with the procedure established under FEMA. (f) That Central Government notification No. 1155 (e) 22/2001/26/2000 issued u/s 16(1) of FEMA 1999 provides provisions for contravention of Section 6(3)(g) of FEMA, the jurisdiction has been vested with Commissioner of Customs Central Excise, depending upon the value of contravention for the purpose of adjudicating under FEMA in accordance with procedure u/s 16 of FEMA 1999 and adjudication procedure and appeal rules stipulated under FEMA. (g) That Rule 5 of Foreign Exchange (Compounding Proceedings) Rules, 2000 provides for machinery for adjudicating the contravention. (h) That in the case of Commissioner of Customs v. Harshavadan Bhagvanji- varia - 2002 (144) E.L.T. 351 it was held. As for the contravention of the provisions of that Act, the notification issued by R.B.I. permits free import of foreign exchange and foreign currency into India there being only requirement that the foreign currency brought by a passenger must be declared. It is therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or under this Act or any other law for the time being in force are liable for confiscation. It has been held by the Hon ble Supreme Court in the case of Sheikh Mohd. Omer v. C.C. reported in 1983 (13) E.L.T. 1439 (S.C.) that any prohibition referred to Section 111 would apply to every prohibition. The prohibition may be complete or partial hence any restriction on import or export is to be extent prohibition. Therefore, the offences under the FEMA will be prohibition imposed by that Act and will by definition come within the ambit of the phrase or any other law for the time being in force in Section 113(d) of the Customs Act, 1962 and thus the goods will be liable to confiscation under Section 113(d) of Customs Act, 1962. Government further notes as per Section 3(33) of Foreign Trade (Development Regulation) Act, 1992 read with Rule 2(c) of the Foreign Trade (Exemption from Application of rules in certain cases) Order, 1993, the Central Government is empowered to make provision relating to import and export of goods. Section 11 of Customs Act confers powers on Central Govt. to prohibit importation or exportation of goods for purposes specified therein. As per Section 113(d) o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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