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TMI Blog2019 (11) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation. In the present case, the goods have been brought into the airport by the Appellant Shri Vasant Kumar Khakkar with an intention to take the same to Sharjah. However, on being detected while screening the baggage by CISF, it is their argument that he has expressed his desire to return back instead of continuing his journey, but the customs authorities seized the same. Therefore, their plea that the action of the Appellant has remained at the stage of preparation only and no attempt has been made to export the Indian currency out of India. Confiscation - HELD THAT:- Sub-sections (d) of Section 113 consists of two independent alternative situations viz. (1) the goods attempted to be exported and (2) or brought within the limits of any Customs area for the purpose of being exported. In the present case, undisputedly, both the conditions are present. The second situation prescribed under sub-section (d) is satisfied, inasmuch as both Shri Vasant Kumar Khakkar and Smt. Renuka Vasant Khakkar, in their respective statements submitted that the Indian currency was obtained by selling their jewellery by Shri Vasant Kumar Khakkar to Sharjah and for said purpose on 18.05.2009, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequently, the said currency was seized by the Customs and after investigation, notice was issued to him on 16.09.2009 for confiscation of the seized currency under Section 113(d) and (e) of Customs Act, 1962 read with Regulation 3 of FEMA (Export Import Currency) Regulation, 2007, penalty proposed under Section 114 of Customs Act, 1962 against him and his wife Smt.Renuka Vasant Khakkar. On adjudication, the Indian currency of ₹ 22,50,000/- was directed to be absolutely confiscated and penalty of ₹ 45.00lakhs imposed on Shri Vasant Kumar Khakkar and penalty of ₹ 22,50,000/- on Mrs. Renuka Vasant Khakkar under Section 114 of Customs Act, 1962. Hence, the present appeals. 3. At the outset, the learned Advocate Shri Vishal Agarwal for the Appellants has submitted that on 18.05.2009, the Appellant Shri Vasant Kumar Khakkar entered the Nagpur Airport to board the Air Arabia Flight No.G-9-410 to travel to Sharjah. He went to the baggage screening counter to have these bags screened and for sealing the same so that he could proceed to the airlines counter for check-in and handing over the baggage. While screening the baggage, CISF officers noticed In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly, the Appellant had not made any attempt to conceal the currency carried by him in the bag and offered explanation when it was detected by CISF officers on screening of the baggage. Further, the Appellant had not proceed with the currency for allegedly illegal export of Indian currency by continuing with the journey but expressed his desire to go back with the currency and obtain necessary approval from the concerned authorities before such currency was seized by the Customs officers. Hence, the allegation of attempting illegal export of Indian currency is not sustainable against the Appellant. 5. Further, the learned Advocate has submitted that penalty imposed on Mrs. Renuka Vasant Khakkar, wife of Shri Vasant Kumar Khakkar is totally un-tenable as there is no evidence on record to show that the she had in any manner contravened the provisions of Section 114 of Customs Act, 1962. The Appellant Mrs. Renuka Vasant Khakkar, in her statement, even though disclosed that ₹ 22,50,000/- Indian currency was obtained by sale of jewellery and to be carried by her husband on his visit to Sharjah but categorically stated that she was unaware of the permission require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Revenue submits that for the purpose of commission of an offence, there are two things one mens-rea and another physical act for commission . It is his contention that in the present case, both the elements are present. After being intercepted by the CISF Personnel, the Appellant Shri Vasant Kumar Khakkar decided to go back which itself indicates his mental condition that he had no intention to declare the currency to the Customs. It is his contention that in the event, he has intention to declare the currency to the Customs and declare the same which could have been verified by the Customs at the time of making declaration. Besides, the Appellant had not carried with him any proof relating to source of procurement of such currency and the same should have been kept with him for production of demand. Therefore, the plea that he has not reached the Customs counter for declaration of the currency has no substance. In support of his submission, the learned A.R. for the Revenue refers to the judgment of Hon'ble Supreme Court in the case of State of Maharashtra Vs Mohd. Yakub Others 1993 (13) ELT 1637 (SC). Applying the ratio laid down in the said judgment, it is clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohibition imposed by or under this Act or any other law for the time being in force; (e) any goods found concealed in a package which is brought within the limits of a customs area for the purpose of exportation. 9. A plain reading of the aforesaid provisions makes it clear that any goods attempted to be exported or brought within the limits of Customs area for the purpose of being exported, contrary to the any prohibition, would result into confiscation. In the present case, the goods have been brought into the airport by the Appellant Shri Vasant Kumar Khakkar with an intention to take the same to Sharjah. However, on being detected while screening the baggage by CISF, it is their argument that he has expressed his desire to return back instead of continuing his journey, but the customs authorities seized the same. Therefore, their plea that the action of the Appellant has remained at the stage of preparation only and no attempt has been made to export the Indian currency out of India. 10. There is no quarrel on the issue that the Indian currency when attempted to be exported out of India beyond the prescribed limit is liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preparations to commit it. the third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be `criminal need not be the penultimate act towards the commission of the offence. It is sufficient if such an act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. As pointed out in Abhayanand Mishra v. State of Bihar, (1962) 2 SCR 241, there is a distinction between `preparation and `attempt . Attempt beings where preparation ends. In sum, a person commits the offence of attempt to commit a particular offence when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. 12. From the statements furnished by the Appellant Shri Vasant Kumar Khakkar it reveals that the Indian currency was carried in his baggage with an objective to take the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easily submitted for screening, hence invoking of sub-section (e) of Section 113 is not correct. 14. With regard to the imposition of penalty on the Appellant Shri Vasant Kumar Khakkar, we find there are enough material/evidence to come to the conclusion that Shri Vasant Kumar Khakkar has contravened the provisions of the Customs Act, 1962 and aware of the law being a frequent traveller that the Indian currency was carried by him in violation of Provisions of Section 113(d) of the Customs Act, 1962 read with Regulation 3 of Foreign Exchange Management (Export and Import of Currency) Regulations, 2000 framed under Section 6(3)(g) read with Section 47 of Foreign Exchange Management Act, 1999. 15. However, we find that imposition of penalty of ₹ 45.00 lakhs under Section 114 of Customs Act, 1962 on Shri Vasant Kumar Khakkar is too harsh and keeping in view the circumstances under which the said currency has been detected and seized, it would meet the ends of justice if the penalty is reduced to ₹ 5.00lakhs. On the issue of imposition of penalty on Smt. Renuka Vasant Khakkar, we do not find any justification for imposition of penalty on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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