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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 ..... een made in his passport. On an examination of his baggage in the presence of the witnesses, it was found that the first respondent was carrying assorted foreign currencies approximately Rs.13.95 lakhs and the same was recovered. A query was made to the first respondent about the carrying of foreign currencies, he appears to have stated that he brought the same for the purpose of his nephew's educational expenditure and for his miscellaneous expenditure in India and he does not possess any currency declaration form for the said currencies. Since the first respondent did not possess any valid documents for the illicit exportation of the foreign currencies, the same were seized under the provisions of the Customs Act. The Traveller's Cheques having been endorsed in the passport, were returned to the first respondent. In the statement given by the first respondent under Section 108 of the Customs Act, the first respondent accepted the offence pleaded for leniency and the matter may be finalised at the earliest by waiving the issuance of show cause notice and affording personal hearing. Further, the first respondent stated that he had not declared foreign currency at the time of arriva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solute confiscation is wholly illegal. It is further stated that there is no restriction provided for the purpose of taking out foreign currency and if at all proceedings could have been initiated under the provisions of the FEMA 1999, there is no power to absolutely confiscate the currency under the provisions of the Customs Act. 6. We have heard the learned counsels on either side and perused the materials available on record. 7. On going through the Order in Original dated 09.07.2001, it is not in dispute that the first respondent attempted to export foreign currencies in U.S.Dollars, Singapore Dollars, Korean Won, Bangkok Baht, New Zealand Dollars, Japanese Yen and Belgium Franc, equivalent to Indian Rs.13.95 lakhs without declaring the same to the Customs and without proper documents to substantiate his legitimate import and export. 8. Further, the first respondent had admitted that he has not declared the foreign currencies at the time of arrival in India, rather he had explained that the same was brought for the education of his nephew. It is further admitted that the first respondent was having US$3310 in the form of Traveller's cheque with endorsement in the passport an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a; (i)acquisition or transfer of immovable property in India, other than a lease not exceeding five years, by a person resident outside India; (j) giving of a guarantee or surety in respect of any debt, obligation or other liability incurred:- (i) by a person resident in India and owed to a person resident outside India; or (ii) by a person resident outside India. 12. In exercise of power conferred under clause 5 of sub section 3 of Section 6 read with Section 47 (2) of FEMA, the Reserve Bank has framed the Foreign Exchange Management (Export and Import of Currency) Regulation 2000 (hereinafter referred to as the "Regulation"). 13. Section 5 of the Regulation imposes a prohibition on export and import of foreign currency. As per Regulation No.6, a person may import foreign exchange in India without limit in any form other than currency note, bank notes and travellers cheques. Similarly, a person may bring into India from any place outside India without any limit of foreign exchange (other than unissued notes). The first proviso to Regulation 6 provides that bringing of foreign exchange into India under the second contingency shall be subject to the condition that such person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia while returning from travel abroad and retrained in accordance with the Foreign Exchange Management (Possession and Retention of Foreign Currency) Regulations, 2000. (4) Any person resident outside India may taken out of India unspent foreign exchange not exceeding the amount brought in by him and declared in accordance with the proviso to clause (b) of regulation 6, on his arrival in India. 14. Thus on a cumulative reading of the above referred Regulations, it is clear that there is a stringent condition is imposed under the Regulations with regard to export or import of foreign currency and in terms of Regulation 5, a prohibition of export and import of foreign currency except as provided under the Regulations. Therefore, the first respondent, as a matter of right, is not entitled to import or export in the manner as he wishes without complying with the provisions of the Regulations. 15. Section 113 of the Customs Act deals with "Confiscation of goods attempted to be improperly exported or imported" etc. The goods, which are liable for confiscation have been listed out in clauses of Section 113. Clause (d) of Section 113 states that any goods attempted to be exported or bro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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