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TMI Blog2020 (12) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... rove the authorized source of procuring the foreign currency therefore, the foreign currency seized from the appellants are liable for confiscation. Redemption Fine - HELD THAT:- The discretion is provided for payment of fine in lieu of confiscation. Therefore, it is not mandatory that in all the cases the absolute confiscation should be made. In the present case, the appellants are engaged in the business and as per their statement which is undisputed fact that they are running a manufacturing unit for manufacture of PP/HDPE woven bags. They have also stated in their statement that the foreign currency were being taken for the business purpose. Also, the export of foreign currency is allowed subject to permission of RBI. The issue that whether confiscation of goods should be made absolute or conditional such as redemption on payment of fine has to be decided on the basis of facts of each case. It is also not in dispute that the judgments cited by the learned counsel hold that the foreign currency can be released on payment of fine in lieu of confiscation. Therefore, considering the facts and circumstances of present case the appellant is entitle for release of foreign currencies o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso recorded from Mr Yashesh Madhusudan Kothari, Principal Officer of the Authorized Dealer. Thereafter, the Show Cause Notice F No.VIII/1089/SVPIA /O A/2017 dated 29.12.2017 was issued by the department proposing to confiscate seized foreign currencies found to be in the possession of the appellants under section 113(d) and 113(e) of the Customs Act, 1962 read with Regulation 5 of the Foreign Exchange Management Regulations. The Show Cause Notice also propose to impose Penalty under section 114 (i) of the act. 4. After considering the reply submitted by the appellants the Adjudicating Authority Vide Order in Original No 06/ADC MSC/SVPIA/O A/2018-19 confirming the proposals made in the Show Cause Notice in the matter of Shri Rajesh Kumar Ishwar Bhai Parikh and ordered absolutely confiscation of the foreign currencies notes worth 24788 US Dollars and 335 UAE Dirhams having equivalent value in Indian Rupees as 16,33,28.20/- under section 113 (d) and (e) of the Customs Act along with imposition of penalty of ₹ 10 Lacs under section 114(i) of the Customs Act. He Vacated the seizure and ordered release of foreign currency notes worth 3000 USD as the appellant had produced receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy) Regulations, 2000, RBI s prior approval is required for transaction included in Schedule III of Regulations, 2000. He submits that Section 2(j) of Foreign Exchange Management Act, 1999 includes -payments due in connection with Foreign Trade, other current business, services and short term banking and credit facilities in the ordinary course of business as the current account transactions. In the present case the payment was pertaining to business dealings of the appellant and is therefore covered under Section 2(j) of FEMA. He submits that Sr.No.8 of Schedule III states that release of foreign exchange in excess of USD 25,000 for business purpose requires the prior approval therefore, as a corollary of the provisions any amount lesser than USD 25,000 does not require prior approval of the RBI. He further submits that by virtue of Sr.No.2 of the Schedule III to the Regulations, 2000 prior approval of RBI is required for the amount exceeding USD 10,000. Therefore, for the amount lesser than USD 10,000 no approval is required from RBI. 7.2 In view of his above submission he argued that the appellants were entitled to carry upto USD 25,000 out of India for business purpose. Even o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Learned Superintendent (Authorized Representative) appearing on behalf of the revenue submits that the appellant have misrepresented the facts that appellants in their statement dated 16.7.2017 stated that they have purchased entire foreign currency from M/s. CAPITAL FOREX SERVICE PVT. LTD. However, the director of the said dealer company has categorically denied this fact and stated that only part of the foreign currency were purchased against receipt. Thus, the appellant have misrepresented the facts in their statement under Section 108 of the Customs Act, 1962 therefore, the appellant have committed a fraud. In this regard he placed reliance on the following judgments:- ASHOK LELAND LTD Vs. STATE OF TAMIL NADU AND ANOTHER dated 7th January, 2004. M/S. STRATEGIC CREDIT CAPITAL PVT.LTD. Versus RATNAKAR BANK LTD 2018 (9) G.S.T.L. 209 (Del.) 8.1 He further submits that foreign currency possessed and being taken out by the appellant is not in accordance with the Foreign Exchange Management ( Possession Redemption of foreign currency) Regulations, 2000 and therefore it is prohibited goods and is liable for confiscation. He referred to various provisions of the aforesaid regulations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scation of foreign currency at the airport? II) Whether the foreign currency being taken out of India seized at the airport is liable for confiscation? III) If it is liable for confiscation whether the same can be released on payment of fine or remain absolute confiscated? A.) As regard the maintainability of appeal before this tribunal I find that this tribunal has considered the very issue in the following judgments:- SHAMBHUNATH RANA Vs. COMMISSIONER OF CUSTOMS, KOLKATA, 2003 Taxman 1152 (Kolkata-CESTAT); PANKAJ KUMAR TRIPATHI Vs. COMMISSIONER OF CUSTOMS, MUMBAI, 2005 VIJAY HEMANDAS JAVA Vs. COMMISSIONER OF CUSTOMS, MUMBAI, 2005 (9) TMI 361 (CESTAT-Mumbai); and COMMISSIONER OF CUSTOMS, Kolkata Vs. VINOD Kr. SHAW, 2002 (12) TMI 390 (CESTAT-Kolkata) 9.1 In view of the above judgment there is no doubt that since the issue is of export of currency which is nothing but goods, this tribunal does have jurisdiction to entertain the present appeals. 9.2 As regard merit of the case we find that there is no dispute of the fact that both the appellants were taking out foreign currency of USD UAE Dirhams. The confiscated currencies were attempted to export without the approval of RBI. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, it is not mandatory that in all the cases the absolute confiscation should be made. In the present case, the appellants are engaged in the business and as per their statement which is undisputed fact that they are running a manufacturing unit for manufacture of PP/HDPE woven bags. They have also stated in their statement that the foreign currency were being taken for the business purpose. 9.5 The Learned Authorized Representative in his submission also confirmed that ₹ 19.91 Lacs were shown as Cash in hand in the books of Partnership Firm of both the appellants therefore, the source of fund for procuring the foreign currency was available with the appellants. The only lapse on the part of the appellant is that they have not obtained the permission from RBI. I also find that the export of foreign currency is allowed subject to permission of RBI. 9.6 As per their statements that they were taking this foreign currency for business purpose which is otherwise permitted by the Reserve Bank of India therefore, it cannot be said that the appellant had any malafide intention to export the foreign currency as they do not have any gain even if permission is not obtained. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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