9911796707
TMI Blog2017 (1) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... he case hand as it is undisputed that Abdullah employee of Sanjay Agarwal, appellant herein was travelling in flight Al 806 which was flying between Mumbai and Hyderabad as a domestic sector flight. If it is so, then the goods i.e. foreign currency and Indian currency was never sought to be exported. Another fault in investigation is that Abdullah from whom the foreign currency and Indian currency was recovered was to hand it over to M.S. Kumar for carrying it to Singapore. It is found from the entire records that M.S. Kumar was never apprehended nor his statement recorded; despite that it was the case to hand foreign currency and Indian currency through M.S. Kumar for taking out of country. In the absence of any statement M.S. Kumar to corroborate the theory of the revenue we find the case of confiscation of the foreign currency and Indian currency falls down. Confiscation and penalty set aside - appeal allowed - decided in favor of appellant. - C/511/05 - A/85021/17/CB - Dated:- 29-12-2016 - Shri M.V. Ravindran, Member (Judicial) And Shri C.J. Mathew, Member (Technical) Shri M.S. Murthy, Advocate for the appellant Shri C. Singh, AC (AR) for the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral justice. The confiscation of Indian and foreign currency is without authority of law inasmuch as the said currency was legally belonging to this appellant and has been claimed by him before the lower authorities; same was being carried by appellant's employee to Hyderabad by domestic flight terminating at Hyderabad itself; seized Indian and foreign currency is not notified or specified goods hence the burden to prove that smuggling thereof squarely lies on the customs department which has not been discharged; seizure of Indian and foreign currency and subsequently confiscating the same from a domestic passenger carrying the same in person on domestic flight terminating at Hyderabad is illegal. It was also brought to our notice that provisions of Section 113(d) will apply to goods admitted to be exported or brought within the customs area for the purpose of being exported contrary to any provisions imposed under the Customs Act, 1962 and in this case there was no attempt to commit any particular offence and there is no proximate cause to hold so. it is his submission that Section 113(h), during the relevant time, applied only to dutiable or prohibited goods if they are goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l number of Sanjay Agarwal and Abdullah and M.S. Kumar noticed that they were continuously in touch on the day when Abdullah was intercepted. It is his submission that Sanjay Agarwal planned to use Abdullah for successfully bypassing the customs barrier so that the currency can be handed over to M.K. Kumar transit lounge. This can be ascertained from the fact that Abdullah was last person to be coerced to board the flight going to Hyderabad. It is his submission that Abdullah was in no hurry despite the fact the flight was ready for departure. It is his submission that the fact that Abdullah travelling in the name of Asad on a ticket and forged photocopy of Asad's passport indicates that Sanjay Agarwal was the mastermind behind all operation of trying to export the Indian and foreign currency domestic form submitted by Abdullah alias Asad had no declaration of any items; that Sanjay Agarwal did not respond to summons by customs hence non-bailable warrant was required to be issued and subsequently he was apprehended in September 2003 and produced before customs authorities. It is his submission that it is therefore clear that Indian currency of ₹ 47 lakhs and foreign curre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transit to hand it over to M.S. Kumar and Sanjay Agarwal, being a knowledgeable of these arrangement has tried to use Abdullah for undertaking such activity. 9. We do not find any merit in the arguments put forth by the Id. Departmental Representative that the impugned order which confiscated the foreign currency and Indian currency needs to be upheld also the penalty imposed on Sanjay Agarwal for more than one reason. Firstly, as regards the Indian currency it is undisputed fact that Sanjay Agarwal is a proprietor and partner one of the jewellery shops situated in Hyderabad. It is to be noted that Sanjay Agarwal had categorically stated that he had brought the said amount of Indian currency for purchase of gold which he could not do so, since his employee Abdullah was in the city in Mumbai, he ordered him to take the amount back to Hyderabad by domestic flight originating Mumbai and terminating in Hyderabad. We find that there is also no dispute that Al 806 was originating Mumbai and terminating in Hyderabad flying domestic sector. We are unable to understand the logic to seize Indian currency which was to be taken by Abdullah from Mumbai to Hyderabad in a domestic sector fli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant's unit in Hyderabad falls within the jurisdiction of the Bangalore zone. The Dye Director of FEMA after issuing notice to Bal Krishna Agarwal, Sanjay Agarwal, Abdullah by an adjudication order dated 28.04.2005, came to a conclusion that the foreign currency which was seized by the customs department from Abdullah on 14.02.2003 is licit currency which was brought into India by Bal Krishna Agarwal, the father of Sanjay Agarwal, appellant herein. The adjudicating authority of FEMA has not confiscated the said currency as illicit currency and has only penalised Bal Krishna Agarwal and Sanjay on procedural aspect of not seeking permission handing over the same to Abdullah. In our considered view, once an authority functioning under FEMA has come to a confusion that foreign currency which was seized on 14.02.2003 by the customs department and subsequently confiscated is licit amount for the sale of jewellery, confiscation of the said amount does not arise. 11. The adjudicating authority has confiscated the Indian currency and foreign currency and foreign currency under the provisions of Section 113(d) and (h) which we reproduce: 113 Confiscation of goods attempted to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
