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TMI Blog2013 (10) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... r to confiscate the currency under Section 113(d) of the Customs Act, is liable to be rejected. The order of the Tribunal holding that there is no provision to declare the foreign currency in hand, cannot be sustainable. The currency possessed by the first respondent, was contrary to the Regulation, particularly Regulation No.5 which clearly states that as per Regulation, no person shall, without the general or special permission of the Reserve Bank, export or send out of India or bring into India, any foreign currency. The goods attempted to be exported being foreign exchange, as defined under the FEMA. - Decided in favour of Revenue. - CMA No. 762 of 2006 and CMP. No. 3035 of 2006 - - - Dated:- 26-9-2013 - Chitra Venkataraman And T. S. Sivagnanam,JJ. For the Petitioner : Mr. S. Thirumavalavan For the Respondent : Mr. T. Ramesh for R1, R2 - Tribunal JUDGMENT (Judgment of the Court was delivered by T. S. Sivagnanam,J.) This appeal by the Revenue, is directed against the Final Order No.681 of 2005, dated 28.04.2005, passed by the CESTAT. 2. The first respondent is a foreign national, holding a Thailand passport and he was a passenger bound for Singapore by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by observing that as per law, there was no requirement to make a declaration at the time of leaving India about the possession of currency, and that the currency in possession of the first respondent was also within the limit permitted by Reserve Bank of India. Challenging the said order, the Revenue has filed the present appeal, which has been admitted on the following substantial question of law:- Whether the lower Tribunal is correct in law in its decision that the currency notes were within the limit provided by Reserve Bank of India Regulations without considering the relevant provisions under Section 77 of the Customs Act, 1962; Section 6(3) of Foreign Exchange Management Act, 1999; Section 7 of Foreign Exchange Management (Export Import of Currency) Regulations, 2000 and the provisions found in Foreign Exchange Management (Possession and Retention of Foreign Currency) Regulations, 2000, though the original authority reasoned its finding based on the above law? 4. The learned counsel for the appellant contended that the findings of the Tribunal that there is no requirement under law to make a declaration at the time of leaving India about the possession of foreign curr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 2(h) "currency" is defined to include all currencies notes, postal notes, postal orders, etc. Section 2(i) defines "currency notes" to mean and include cash in the form of coins and bank notes and Sections 2(l) and 2(p) define "export" and "import" respectively. Section 6 of FEMA deals with "capital account transactions" under sub section (3) of Section 6 without prejudice to the generality of the provisions of sub section (2), the Reserve Bank may, by regulations, prohibit, restrict or regulate any of the following mentioned clause (a) to (j). For better appreciation, the provision is quoted hereunder:- Section 6. Capital account transactions:- (1)......... (2)......... (3)Without prejudice to the generality of the provisions of sub-section (2), the Reserve Bank may, by regulations, prohibit, restrict or regulate the following:- (a) transfer or issue of any foreign security by a person resident in India; (b) transfer or issue of any security by a person resident outside India; (c) transfer or issue of any security or foreign security by any branch, office or agency in India of a person resident outside India; (d) any borrowing or lending in foreign exchan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 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, export or send out of India, or import or bring 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 7. Export of foreign exchange and currency notes:- (1) An authorised person may send out of India foreign currency acquired in normal course of business. (2) Any person may take or send out of India:- (i) cheques drawn on foreign currency account maintained in accordance with Foreign Exchange Management (Foreign Currency Accounts by a person Resident in India) Regulations, 2000; (ii) foreign exchange obtained by him by drawl from an authorised person in accordance with the provisions of the Act or the ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the learned counsel for the first respondent that there is no power to confiscate the currency under Section 113(d) of the Customs Act, is liable to be rejected. 17. In the back ground of the above provisions, the order of the Tribunal holding that there is no provision to declare the foreign currency in hand, cannot be sustainable. The currency possessed by the first respondent, was contrary to the Regulation, particularly Regulation No.5 which clearly states that as per Regulation, no person shall, without the general or special permission of the Reserve Bank, export or send out of India or bring into India, any foreign currency. The goods attempted to be exported being foreign exchange, as defined under the FEMA. 18. For all the above reasons, we do not accept the order of the Tribunal, the order of the Tribunal is set aside and the order of the adjudicating authority is hereby confirmed. The learned counsel for the assessee sought for liberty to approach the authorities concerned under the provisions of FEMA. It is always open to the first respondent to avail remedies available under the FEMA Act. No costs. Consequently, connected miscellaneous petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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