9911796707
TMI Blog2020 (12) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... ams were also found to be in possession of appellant Shri Ashish Kumar Dayabhai Patel which were collectively valued at INR 8,55,474. The Currencies were seized under the belief that it is liable for confiscation under the provision of Customs Act, 1962. 2. The Statements of both the appellants were recorded by AIU Customs SVPI Ahmedabad, wherein, they have stated that they were taking foreign currency notes out of India as their Partnership firm has incurred losses in their business dealing in Dubai and they had to compensate for this loss to the firm in Dubai. The appellants also stated that the currency notes were purchased from the Authorized Dealers M/s. Capital Forex Services Private Ltd having its office at UL-23 Samudra Building, Nr.Classic Gold Hotel, Girish Cold drink Crossing, C.G Road Ahmedabad. They further stated that part of the currency notes obtained from the said dealer were against the receipt however, but the remaining amount, no receipt was provided. 3. As regards the source of the money for buying foreign currency the appellant stated that the amount was available as cash in hand in the balance sheet of Shubh Laxmi E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry objection raised by Learned Authorized Representative that this case being of baggage, the appeal does not lye before this tribunal and the appellants ought to have filed revision application before concerned authority. In this regard he submits that various benches of Hon'ble Tribunal have held in catena of decisions that currency is distinct from baggage and Section 2(22) of the Customs Act, 1962 makes a clear distinction between the goods and currencies. He further submits that it has been held that in cases where confiscation is done under Section 113 (d) of the Customs Act and not under Section 113(h) of the Customs Act, 1962, it is implied that there is an attempt to export and not relatable to Baggage Rules, 2016 therefore Hon'ble CESTAT does have jurisdiction to entertain such appeals. In support of his submission he placed reliance on 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. SHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the same on payment of redemption fine ought to have been given. In support of his submission he relied upon the following judgments:- * PREM KUMAR Vs. CUSTOMS, 2016 (2) TMI 310 * PARESH KANJIBHAI PATEL, 2011 (24) STR (248)-GOI * COMMISSIONER OF CUSTOMS Vs. RAJINDER NARULA, 2017 (346) ELT 0009 (Bom.) * SAYYED GHOLAMY Vs. COMMISSIONER OF CUSTOMS, 2005 (179) ELT 401 (Tri.-Mum) Relying on the above judgments it is submitted that the absolute confiscation in the facts of the case was not correct therefore, the impugned order directing absolute confiscation of Foreign currency deserves to be set aside. As regard imposition of penalty he further submits that there is no question of imposing any penalty under Section 114(i) of the Customs Act, 1962. 7.4 Without prejudice, it is his submission that appellants were involved in such an activity for the first time and as no prior history in being engaged in such cases. The appellants were acting in a bonafide manner and was thoroughly cooperating with the department in its investigation therefore, imposition of penalty by the impugned order is liable to be set aside. 7.5 Without prejudice, absolute confisc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and upholding the penalty he submits that the appellant has failed to prove that the said currency is legitimately owned by the appellant. Even copy of Books of Accounts provided by them also does not come to their rescue. Since the book shows Cash in hand only to the tune of Rs. 19,91,020/-. On the other hand, the INR equivalent of foreign currency seized is Rs. 2488702/- which is higher than Cash in hand shown in Shubh Laxmi Enterprise, Balance Sheet. 8.3 Apart from that the appellant also failed to show any proof of withdrawl of Indian Rupee from Bank of Baroda as stated in their statement dated 16.07.2017 therefore, order for absolute confiscation is legally correct and the same cannot be released. He placed reliance on the following judgments: i.) S.Faisal Khan Vs. Joint commissioner- 2010 (259) E.L.T. 541 (Mad.) ii.) COMMISSIONER OF CUSTOMS (AIR), CHENNAI Versus VEERACHI VITHAYAPHALERT 2014 (303) E.L.T. 49 (Mad.) iii.) N.L. TECHNOLOGIES PVT. LTD. Versus COMMISSIONER OF CUSTOMS, COCHIN 2019 (368) E.L.T. 541 (Ker.) iv.) UNION OF INDIA v. AIJAJ AHMAD- 2009 (244) E.L.T. 49 (Bom.) v.) &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants are liable for confiscation. 9.4 As regard the issue that in the facts and circumstances of the present case though the foreign currency are liable for confiscation but whether the same can be released on payment of fine or the absolute confiscation should remain, I find that the confiscation was ordered under Section 113(d) & (e) of the Customs Act, 1962 which is reproduced below:- 113. Confiscation of goods attempted to be improperly exported, etc. The following export goods shall be liable to confiscation: (d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition 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; With regard to the confiscation under the above provision the option is provided for payment of fine in lieu of confiscation under Section 125 of the Customs Act, which is reproduced below:- 125. Option to pay fine in lieu of confiscation (1) Whenever confiscation of any g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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