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2009 (11) TMI 645

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..... 0 for violation of Section 77 of the Customs Act, 1962 read with relevant provisions/notifications from RBI and imposition of penalty under Section 114(i) of the Act, ibid cannot be assailed and was rightly adjudged by the lower authorities as per available admissible evidence/facts on record. - however redemption fine and penalty reduced.
Shri D.P. Singh, J. [Order]. - This Revision Application has been filed by the Applicant Shri Kanwaljit Singh Bala, Kolkata against order-in-appeal No. KOL/CUS/CKAP/ 23/2009, dated 8-4-2009 passed by the Commissioner of Customs (Appeals), Custom House, Kolkata in the matter arising out of order-in-original No. ASA-910/09(AIU), dated 11-2-2009 as passed by the jurisdictional Joint Commissioner of Customs, Kolkata Airport. 2. Brief facts of the case are that the appellant was leaving for London on 11-2-09 by Flight No. EK-571 from Kolkata Airport. After completing immigration formalities while the appellant was proceedings towards the security hold area, one of the AIU officers intercepted him. On being asked the appellant declared of having 1500 Euro and IC Rs. 5200/-. Not being satisfied, his person was searched which resulted in the .....

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..... o some urgent family work, the appellant had to return back to India for visit to UK as would be evident from the endorsement made by the Immigration Authority on the passport of the Appellant. The appellant stayed at Malayasia only-three days Date of Departure : 23-1-2009 and Date of Arrival : 25-1-2009) Copy of the relevant pages of Passport No. F-6206547 (old passport) are enclosed for perusal and marked as Annexure "E". 3.5 Due to sudden return to India, the appellant again converted the Malaysian Currency into EURO & UK Pound at Airport for utilizing the same for subsequent visit to UK. In a hurry no Money Exchange Receipt was obtained. 3.6 Moreover, the failure on the part of the appellant to declare the same to Customs Authority on his return from Malaysia is due to ignorance. 3.7 Failed to take into consideration that Import/Export of such amount of foreign currency is allowed as per Law under liberalized Govt. policy. There was no mala fide intention in bringing the unspent currency back to India and to carry the same subsequently for overseas visit as the appellant left for UK on 22-4-2009 as would be evident from the copy of the relevant pages of appell .....

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..... sequent re-tractions and post producing of said money receipts which the applicant states to be as proper document in respect of the said seized currency. So far as subsequent denial of facts on record including an allegation that Customs officers made him to sign a back date of 11-2-2009 after his visit from Malaysia on 23-2-2009 for which protest letter was sent on 6-3-2009 is concerned, Govt. after due consideration neither finds any independent evidence nor is inclined to accept the same. Govt. here is of the view as held by Hon'ble Supreme Court in case of Surjeet Singh Chhabra v. UOI [1997 (89) E.L.T. (646)] that "statement made before the Custom Officer though retracted with in six days is an admission and binding since Custom officers are not police officers under Section 108 of the Customs Act, and FEMA...." Therefore in view of above Govt. takes up and proceeds with in this case as per the signed/certified facts on records. 7. Now, the applicant's main plea is that impugned currency is a part of his foreign currency which he brought back while returning from his last visit to Malayasia. Since the main issue involved is taking out (export) of foreign currency and bri .....

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..... made the Foreign Exchange Management (Export and Import of currency) Regulations, 2000 vide the Notification No. 6/2000-RB dated 3-5-2000. Regulations 5, 6 and 7 of those Regulations reads as following "5. Prohibition on export and import of foreign currency. Except as otherwise provided in these regulations, no person shall, without the general or special permission of the Reserve Bank of India, export or send out of India, or import or being into India, any foreign currency. 6. Import of foreign exchange into India. A person may - (a) send into India without limit foreign exchange in any form other than currency notes, bank notes and travellers cheques; (b) bring into India from any place outside India without limit foreign exchange (other than unissued notes) : Provided that bringing of foreign exchange into India under clause (b) shall be subject to the condition that such person makes, on arrival in India, a declaration to the Custom authorities in Currency Declaration Form (CDF) annexed to these Regulations : Provided further that it shall not be necessary to make such declaration where the aggregate value of the foreign exchange in the form of cu .....

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..... he applicant's submissions as above provides the details of his previous visit abroad but there is no "Independent" documentary evidence so as to confirm that presently seized foreign currency is necessarily from the unspent amount of that particular transaction/visit. Only proper CDF could be the connecting legal document which is very much missing in this case. In absence of such a vital link the entire theory/submissions appears to be an after thought and excuse. 10. Therefore taking into account a settled principle of law that ignorance of law is no excuse, Govt. is of the opinion that the Applicant (pax) had not declared the impugned foreign currency truthfully to the Custom Officers in contravention of Section 77 of the Customs Act, 1962 and had intentionally attempted to export the same illegally. 11. In view of the above discussions, Government observes that the confiscation of foreign currency under Section 113(d)(l) of the Customs Act, 1962 read with provisions of FEMA (Export and Import of Currency) Regulations, 2000 for violation of Section 77 of the Customs Act, 1962 read with relevant provisions/notifications from RBI and imposition of penalty under Sectio .....

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