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TMI Blog2016 (9) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... looking to the conduct of the appellant and nature of the offence, the denial of grant of option to appellant is justified. Appeal dismissed - decided against appellant. - C/941/08 - A/88928/16/SMB - Dated:- 1-8-2016 - Shri Ramesh Nair, Member (Judicial) Shri Sanjay Agarwal, Advocate for Appellant Shri D.K. Sinha, Asstt. Commr. (A.R) for respondent ORDER This appeal is filed by the Revenue against Order-in-Original No. COMMR/PVR/ADJN/20/08 dt.14/2/2008 passed by the Commissioner of Customs. CSI Airport, Mumbai. 2. The fact of the case is that the appellant Shri Harchandani Choith Nanikram while travelling to Singapore by Jet Airways Flight on 26.3.2007 was intercepted by the officers of Air Intelligence Unit of Customs at Chhatrapati Shivaji International Airport, Sahar, Mumbai. Examination of his pouch and wearing clothes, it resulted recovery of undeclared currencies as detailed below: Indian - ₹ 17000/- US $ - 2400 British Pound - 1060 Euro - 62800 UAE Dirhams - 1000 Qatar Rial - 1000 Hong Kong Dollars - 6000 Collectively equivalent to Indian ₹ 38,00,671/-. On enquiry from the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the provisions of the Customs Act, 1962 or any other law. The definition of 'prohibited goods' under the Customs Act, was however, erroneously invoked in the context of section 125, by erroneously relying on Judgments which were rendered in the context of section 111 or 113, and thus were not binding precedents for the purpose of section 125. The said approach is deprecated by the Hon'ble Apex Court in Escorts Ltd, 2004 (173) E.L.T. 113 (S.C.) with following observations- 8. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated .... Moreover, Section 2, which contains definitions, begins with the following - 2. Definitions. - In this Act, unless the context otherwise requires Thus, the definition of 'prohibited goods', whether would apply in the context of section 125, required ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable, the same meaning cannot be assigned, by application of the words 'unless the context otherwise requires'. Reliance in this regard is placed on following binding precedents of Hon'ble Apex Court - a. In Mukesh K. Tripathi vs Senior Divisional Manager, L1C, (2004) 8 SCC 387 this Court observed: (SCC pp. 399-400 paras 39-40) - 39. The interpretation clause contained in a statute although may deserve a broader meaning having employed the word 'includes' but therefore also it is necessary to keep in view the scheme of the object and purport of the statute which takes him out of the said definition. Furthermore, the interpretation section begins with words 'unless the context otherwise requires'. b. In Ramesh Mehta vs Sanwal Chand Singhvi, (2004) 5 SCC 409 it was noticed: (SCC p. 426, paras 27-28)- 27. A definition is not to be read in isolation. It must be read in the context of phrase which would define it. It should not be vague or ambiguous. The definition of words must be given a meaningful application; where the context makes the definition given in the interpretation clause inapplicable, the same meaning cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. Therefore in the context of section 125 if the word prohibited is construed as to apply in respect of every violation of any regulation or restriction or statutory procedural requirement, the said section would be rendered redundant and meaningless, and no such interpretation can thus be given in the context of section 125, in light of the judgment of Hon'ble Supreme Court in Asian Food Industries (supra) r/w the above referred binding precedents on interpretation of words unless the context otherwise requires . Therefore, the judgments relied in the impugned order are not applicable in the context that the aforesaid legal position binding precedents of Hon'ble Apex Court have not been considered therein. 7. After considering the above precedents, in the matter of Noor Moiddin Bapa, the Commissioner (Appeals) was pleased to uphold the above proposition and had set aside absolute confiscation. The order of Commissioner (Appeals) was accepted by Revenue without any challenge thereto. The Central Government thereafter modified the order of Commissioner (Appeals) and was pleased to reduce the fine and penalty imposed by the Commissioner (Appeals). 8. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld is also liable for confiscation. xxxx xxxx xxxx xxxx xxxx xxxx (The earlier portion of the printed form of the order, marked xxxxx were left blank and do not form part of the Order.) I also order absolute confiscation of the goods (gold) valued ₹ 1,20,969 under Section 111 (d), (I), (m) and (0) of Customs Act, 1962, read with Section 3(3) and Section 4 of Foreign Trade (0 R) Act, 1922. I further impose a penalty of ₹ 5,000/- (Rupees five thousand only) under Section 112 of Customs Act, 1962 for importing goods in contravention of the restriction. I also confiscate the briefcase of NCv used for concealment of the said gold. Sd/-xxxx Deputy Collector of Customs. It is apparent that the distinction and the non-compliance with the provisions of law as pointed out earlier was not kept in view either by the original, or the appellate authority or the revisional authority. 4. In that view of the matter, we set aside the orders of the Assistant (sic. Deputy) Collector of Customs and the appellate as well as the revisional authorities and remand the matter to the Deputy Collector of Customs, 4th respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed under FEMA are no more restrictions imposed under section 11 of the Act. 11. As per General Notes to Export Policy, all goods other than the entries in the Export Licensing Schedule along with its appendices are freely exportable, subject to any other law for the time being in force. The said General Notes distinguish between 'prohibited' and 'restricted' goods, as separate class. Whereas, the 'prohibited' items are not permitted to be exported and export licence will not be given in the normal course for such goods, the 'restricted' items can be permitted for export under licence. There is no dispute on the fact that in the instant case, since the Appellant was not carrying RBI permission, the export of seized currencies was held as 'restricted'. 12. Regulation 5 of FEM (Export Import of Currency) Regulations, 2000, notified vide Notification No.FEMA 6/RB 2000 dated 3.5.2000, reads as under- 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, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aik Jamal Basha vs. GOI (supra) of Andhra Pradesh High Court, which was also followed by Hon'ble Madras High Court in T. Elavarasan (supra), was not cited by both sides. (iii) The precedent decisions of the Hon'ble Apex Court relied hereinabove, and the arguments being advanced herein, were also not brought to the notice of the Hon'ble larger Bench. (iv) It is, therefore, submitted that the Judgments of Hon'ble High Court will have precedence over the said Judgment of larger Bench. In any event, the Referral Bench thereafter, was pleased to permit option to redeem on payment of fine. 15. The Revenue in the course of arguments relied on the Judgments reported in Harish Muljimal Gandhi, 2013 (294) ELT 470 (Tri. - Mumbai), UOI vs. Mohammed Aijaj Ahmed, 2009 (244) ELT 49 (Born.) and CC vs. Samynathan Murugesan, 2009 (247) ELT 21 (Mad.). The challenge to the latter two Judgments was dismissed before the Hon'ble Apex Court. It is submitted that - (i) In Harish Muljimal Gandhi (supra), neither the Judgment of Hon'ble Andhra Pradesh High Court in Shaik Jamal Basha (supra), nor section 67 of FERA and non-existence of any similar provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile deciding that issue. 18. Furthermore, this Court, while rendering judgment in Dhondiram Tatoba Kadam was bound by its earlier decision of a coordinate Bench in Ramchandra Keshav Adke. We are bound to follow the earlier judgment which is precisely on the point in preference to the later judgment which has been rendered without adequate argument at the Bar and also without reference to the mandatory provisions of the Act. (vi) Several other precedents of Government of India, and of this Hon'ble Tribunal wherein the seized currency was released on payment of fine, are already placed on record. Thus, without prejudice, even if, the Appellant fails in his argument that grant of option to redeem the goods on payment of fine was mandatory, a case for exercising discretion for grant of such option is made out in the instant case. (vii) The penalty imposed is also very high. The seizure was effected several years back. Grave loss has already been caused. Case for modification by reduction of penalty amount is also therefore, made out. The Ld. Counsel also placed reliance on following judgments: (i) Peringatil Hamza Vs. CC (Airport), Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have given option for redemption of currencies, in this regard I go through the provision for redemption as provided under Section 125 which reproduced below: 125. Option to pay fine in lieu of confiscation.- (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods 1[or, where such owner is not known, the person from whose possession or custody such goods have been seized,] an option to pay in lieu of confiscation such fine as the said officer thinks fit: From the above section 125, it is the discretion vested in the authority whether to allow redemption of confiscated goods on payment of fine or otherwise. In the present case it is noticed that the appellant admittedly tried to mislead the officers, investigating the case. First he stated that currencies belonged to Mr. Dinesh Manohar Pahuja and Mr. Manohar Shyamlal Pahuja, China then changed his statement that it belonged to Mr. Khushaldas Belani of Singa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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