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TMI Blog2015 (1) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... r (J) Shri Anil Balani, and Brajesh Pathak, Advocates, for the Appellant. Shri Ahibaran, Addl. Commissioner (AR), for the Respondent. ORDER [Order per : P.R. Chandrasekharan] . - There are 3 appeals directed against Order-in-original No. COMMR/PMG/ADJN/01/2011-2012 dated 22-7-2011 passed by the Commissioner of. Customs, Chhatrapati Shivaji International Airport, Mumbai. Vide the impugned order, the ld. Adjudicating authority has ordered absolute confiscation of foreign currency equivalent to ₹ 1,25,22,780/- seized from Sri. Suresh Ganagaram Hole while he was attempting to smuggle the said currency out of India on his way to Sharjah from Mumbai by Air Arabia Flight No. G9-1402 on 8-1-2006. The said currency was confiscated under the provisions of Section 113(d) and 113(h) of the Customs Act, 1962. The ld.-Adjudicating authority also imposed penalties of ₹ 50 lakhs on Shri Hole, ₹ 1.25 crore on Shri Rajendra G Bhutada, who claims to be the owner of the said currency and Smt. Bharati Bhutada, wife of Sri, Rajendra Bhutada, for their involvement in the alleged smuggling of the said foreign currency. Aggrieved of the same, the appellants are before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62, only 3 adjournments are required to be given and the said provision has been complied with by granting more than 3 adjournments. 4. The ld. Counsel for the appellant Sri. Suresh Gangaram Hole made the following submissions :- (1) The appellant was under detention and custody of the customs- officers from. 3.40 am on 8-1-2006 after he was intercepted with the foreign currency at the Mumbai airport and he was produced before the judicial magistrate only on 9-1-2006 in the post lunch session. Therefore, the detention was illegal and the statement recorded from the appellant during the illegal detention is not a valid evidence. (2) The panchnama proceedings for seizure of currency was made in English and the appellant did not know English and knew only Marathi Hindi. The panchnama was prepaired first and the signature of the panchas obtained later. Hence the same cannot be relied upon as an evidence for recovery of foreign currency from the appellant. (3) The statement recorded from the appellant in English was retracted on 9-1-2006 and all the subsequent statements recorded on 10th, 16th 17th January and 23rd February, 2006 were in English (that is, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. Counsel appearing for Sri. Rajendra Butada. and his wife Smt. Bharati Butada made the following submissions :- (a) As regards Smt. Bharati Butada, the allegation is that she handed over a package containing foreign currency to Sri. Suresh Gangaram Hole on 27-12-2005 to be handed over to her husband in Dubai on 28-12-2005. In the show cause notice issued, there is no proposal to confiscate the said currency allegedly handed over and therefore, no penal action can be taken against the appellant. Since her husband was in India on 28-12-2005, this contention of the department is clearly wrong. The present seizure pertains to an altogether different transaction and the appellant has nothing to do with the same. The confrontation panchnama between her and Mr. Hole drawn on 1-9-2006, was never relied upon, and the investigating officer has also denied having drawn any such panchnama. Hence the entire charge against the appellant is on flimsy grounds without any basis. Accordingly, it is prayed that the penalty imposed on the appellant be set aside. (b) As regards the charges against Mr. Rajendra Butada, the appellant has been implicated only on the basis of uncorrobora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 113(d) and 113(h) of the Customs Act. Therefore they are liable to absolute confiscation and it is the prerogative of the adjudicating authority to use his discretion with regard to grant of option for redemption. He relies on the decision of a Larger Bench of this Tribunal in the case of Peringatil Hamza vide Order No. M/1280/14/CSTB/C-I dated 23-6-2014 [2014 (306) E.L.T. 322 (Tribunal)]. He further states that statement of a co-accused can be used as a substantive evidence against the accused and relies on the decision of the Hon ble Apex Court in Naresh J. Sukhwani [1996 (83) E.L.T. 258 (S.C.)] in support of this contention. He further relies on the decision of the Hon ble Madras High Court in the case of CC v. Brinda Enterprises [2010 (262).E.L.T. 239 wherein it has been held that if goods are . prohibited , then they are liable to confiscation. Accordingly he pleads for upholding the impugned order and dismissing the appeals. 7. We have carefully considered the rival submissions. Our findings and conclusions are discussed in the ensuing paragraphs. 7.1 There are certain preliminary objections raised by the appellants pertaining to violation of principles of natural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We find that the adjudicating authority has specifically dealt with this issue and rejected the claims of the appellants holding that the statements were voluntary in nature and the subsequent retraction is a mere afterthought with a view to escaping the consequences of the violations committed. The adjudicating authority was aware of the requirement of examining the voluntary nature of the statements relied upon by it and has accordingly examined this aspect and given cogent reasons for holding that the statements were indeed voluntary and incriminating. Paragraphs 19 to 23.17 of the impugned order records the detailed examination of the points urged by the appellants and the cogent reasons for rejection of cross-examination of the witnesses and holding why the statements have to be considered as voluntary and incriminating. Therefore, we are of the considered view that these contentions raised before us in this regard lack merit and have been dealt with adequately by the adjudicating authority. As regards the contention that the Show Cause Notice should have been issued within 6 months of seizure, the Commissioner of Customs has the power to extend the time limit by anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xport of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of-which the conditions subject to which the goods are permitted to be imported or exported have been complied with. In the present case, the appellant did not have permission from the RBI for export of foreign currency nor did he declare the foreign currency when he came to India on 28-12-2005. Therefore, the currency under seizure are prohibited goods as per the provisions of the Customs Act and therefore, liable to confiscation under Section 113(d) as any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force as well as under section 113(h) as any goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77 . 7.5 The liability to absolute confiscation of Indian currency attempted to be illegally exported was considered by a larger bench of this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied under the FEMA, makes the goods liable for confiscation in view of the above-said prohibition. Therefore, the Original Authority was justified in ordering absolute confiscation of the currency. The key word in Regulation 5 is prohibition of import and export of foreign currency. The exception is that special or general permission should be obtained from the Reserve Bank of India, which the passenger has not obtained and therefore the order of absolute confiscation is justified in respect of goods prohibited for export, namely, foreign currency. 7.6 The ratio of the above decision was followed by this Tribunal in the case of M K S Mohammed Rafi v. Commissioner of Customs (Airport ACC), Chennai [2014-TIOL-1681-CESTAT-MAD] wherein it was held that- Under Section 3 of the Foreign Exchange Management Act, 1999 read with Regulation 5 of the Foreign Exchange Management (Export Import of Currency) Regulation, 2000, no person shall without the general or special permission of the Reserve Bank export/send out of India or import/bring into India any foreign exchange currency-admittedly, the appellant was carrying foreign currency without the permission of RBI - adjudicating a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout any permission from RBI and without declaration to the Customs. No evidence worth the name has been produced by the appellants to show that the foreign currency was meant for purchase of laptops by way of purchase orders or otherwise to M/s. a3 Holdings Ltd., Hongkong. Further, there is no evidence led by Sri. Hole showing that he was employed as a salesman in the Tycoon General Trading LLC, Dubai and no appointment letter employing him as a salesman was produced by Sri. Hole to support his claim in this regard. This is also contrary to the initial statements of Sri Suresh Hole that the money was given to him by Smt. Bharati Butada in Pune for handing over the same to Mr. Rajendra Butada in Dubai. Further, there are contradictions in the statements of Sri. Rajendra Butada and Sri Suresh Gagaram Hole which has been discussed at length in the impugned order in paras 23 to 23.17 thereof. Further, the conduct of Sri. Rajendra Butada, immediately after the interception of Sri. Suresh Gangaram Hole on 8-1-2006 and his subsequent arrest is also very strange. If the money belonged to Sri. Butada and its source was genuine, there was no need for him not to respond to the various summo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a who masterminded the whole transaction. Smt. Bharati Butada s role is limited to handing over the foreign currency to Sri. Hole in Pune. However, considering the fact the we have upheld the absolute confiscation of the seized foreign currency, which itself is a substantial punishment, the penalties on the appellants need to be moderated commensurate with their roles in the transaction. Accordingly we reduce the penalty on Sri. Suresh Gangaram Hole from ₹ 50 lakhs to ₹ 5 lakhs, on Sri. Rajendra Butada from ₹ 1.25 Crore to ₹ 25 lakhs and on Smt. Bharati Butada from ₹ 25 lakhs to ₹ 1 lakh. But for the above modification by way of reduction in the penalties imposed, we uphold the impugned order. 8. To sum up, we uphold the absolute confiscation of seized foreign currency equivalent to ₹ 1,25,22,780/- under Sections 113(d) and (h) of the Customs Act, 1962. We reduce the penalties imposed under Section 114(i) of the said Customs Act on the appellants, Sri. -Suresh Gangaram Hole, Sri. Rajendra Butada and Smt. Bharati Butada to ₹ 5 lakhs, ₹ 25 lakhs and ₹ 1 lakh respectively. (Operative part of the order pronounced in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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