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TMI Blog2019 (10) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggled goods are sold in India, they were sold against the exchange of Indian currency. How the smuggled goods are sold in exchange of Nepalese currency within the territory of India has not be explained anywhere by Revenue. Appeal allowed - decided in favor of appellant. - Customs Appeal No.70144 of 2019, 70142 of 2019, 70143 of 2019 - Final Order No. 71567-71569/2019 - Dated:- 14-8-2019 - Hon ble Mr. Anil G. Shakkarwar, Member (Technical) Shri Nishant Mishra, Advocate And Shri Vipin Kumar Kushwaha Advocate for Appellant Shri Pawan Kumar Singh, Authorized Representative for Respondent ORDER PER : ANIL G. SHAKKARWAR Above stated three app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to Assistant Commissioner of Customs, Gorakhpur retracted his earlier statement dated 29.06.2013. On 03.07.2013 Shri Anil Kumar Gupta addressed a letter to Commissioner Custom of Lucknow and brought to his notice that when he was intercepted on 28.06.2013, he was having Nepali currency of 1.01 crore and he was forcibly made to write dictated statement and the narratives described therein was neither in his knowledge nor related to any facts and the same was denied by him at the earliest opportunity vide his affidavit dated 01.07.2013 and that he was released from the custody of Custom officers on 30.06.2013 and he was under unauthorized detention from 28.06.2013 to 30.06.2013 and officers did not give him acknowledgement for detention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 and also to confiscate the said vehicle and to impose penalty upon all the three appellants under sections 112, 114 and 117 of Customs Act 1962. On contest the said show cause notice was adjudicated through Order-in-Original dated 20th March 2015. Through the said Order-in-Original, the Original Authority confiscated Nepalese currency of 75,00,000 (Seventy five lacs) under section 121 of Customs Act, 1962 without giving option to redeem the same and ordered confiscation of vehicle with an option to redeem the same on payment of fine of ₹ 50,000 (Fifty thousand). Further, the Original Authority imposed penalty of ₹ 5,00,000 (Five lacs) on each of the appellant under section 114(i) of Customs Act, 1962. Aggrieve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne lacs) with them and Revenue has not further examined the books of account to know how the said amount was utilized, but they have taken into consideration only availability of ₹ 51,00,000 (Fifty one lacs) with the appellant and presumed that the said amount was in the form of notes of Indian currency of the denomination of 500 (Five hundred) and 1,000 (One thousand) and presumed that the said notes were sent to Nepal to obtain the currency which was seized. He has submitted that the entire show cause notice is based on presumption. He has further submitted that under section 121 of Customs Act, 1962 foreign currency cannot be seized as held in various case laws. He has submitted that section 121 of Customs Act, 1962 provides for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustained through impugned Order-in-Appeal is under the provisions of section 121 of Customs Act, 1962. I note that under said section of 121 of Customs Act, 1962 only such proceeds can be confiscated which are sale proceeds of sale of smuggled goods. As held by this Tribunal in the case of Ram Chandra VS Commissioner of Custom (supra) before confiscation of proceeds Custom has to establish that there was sale of smuggled goods. In the present case there is no whisper of any smuggled goods in the whole proceedings. Therefore, it is established that there were no smuggled goods and therefore the question of sale of smuggled goods in the present appeal does not arise. Further when the smuggled goods are sold in India, they were sold against t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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