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TMI Blog2022 (10) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Airport, Jaipur, while he was going to Dubai on 17.07.2018 by Spice Jet flight SG-57 on ticket PNR-RH17KE. The ATS officers informed the Assistant Commissioner, Customs (Preventive ), Jaipur, who confirmed from departure manifest that the appellant no.1 was going to Dubai from Jaipur. The appellant no.1 along with his baggage was brought inside the airport by making entry pass. After obtaining his consent in terms of Section 102 of the Customs Act, 1962, his personal search was conducted before a Gazetted officer of Customs. During the course of personal search of the appellant no.1, a mobile phone (Samsung A3) was found. Thereafter, his baggage was opened; Foreign and Indian currency, packed in a black polythene were found along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 108 of the Custom Act, 1962, wherein, he, inter alia, stated that he is working as employee at Satguru Trading LLC, Dubai for the last 7 years drawing salary of AED 6000 per month and he is resident of Kishangarh. He was intercepted by the ATS officers, Jaipur while entering the International Airport, before departure hall and on examination, the officers found Indian currency as well as foreign currency. Accordingly, was brought into Airport by the officers for conducting thorough examination of his baggage, foreign currency valued at INR 35,50,026/- and Indian Currency of Rs.37,650/- totalling Rs.35,87,676/- was recovered. He was not having any legal documents or approval/permission of Reserve Bank of India for carrying the said cur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tija or Shri Sunny Bhatija and never visited M/s.Harish Forex Services Pvt. Ltd., Shop No.249, Opposite LMB Hotel, Johri Bazar, Jaipur. 8. Further, statement of Shri Harish Bhatija (appellant) S/o Shri Ramchandra Bhatija of M/s. Harish Forex Services Pvt. Ltd. was recorded on 3.8.2018, who, inter alia, stated that he and his son, Shri Sunny Bhatija work at M/s. Harish Forex Services Pvt. Ltd., 249, Opposite, LMB Hotel, Johri Bazar, Jaipur (Rajasthan), that he has two mobile numbers 9829055140 and 9887752993 and his son, Shri Sunny Bhatija's mobile number is 9887727081; that he never met Mr.Anil Jain or Shri Bharat Thadani and he never contacted them through mobile. 9. The officers also called for the call detail records from Bharati Airte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the foreign currency delivered to him ( Mr. Anil Jain). 10. Thus, it appeared to Revenue that Shri Bharat Thadani and Shri Harish Bhatija are involved in export of foreign currency seized from Shri Anil Jain, which was being carried illegally against the provisions of the law. The same appears to be liable to confiscation for violation of the provisions of the Foreign Exchange Management Act, 1999 read with Regulation 3, 5 and 7 of Foreign Exchange Management (Export and Import Currency) Regulations, 2015 read with Baggage Rules, 2016 and Section 77 of the Customs Act. 11. Accordingly, show cause notice dated 15.01.2019 was issued with proposal to confiscate the foreign currency along with Indian c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e did not enter customs area, and accordingly, the seizure and allegation of attempt to smuggling foreign currency and Indian currency is bad in law and on facts. 13. Shri Bharat Thadani has filed reply, inter alia, stating that he was unemployed and has closed down his restaurant and did not have such huge money of about Rs.35 lakhs so as to purchase foreign currency for remittance through Anil Jain. It was further stated that Shri Anil Jain was a habitual offender and has taken the name of other co-noticees in order to save himself. The show cause notice was adjudicated without examining Shri Anil Jain in the course of adjudication proceedings, nor he was offered for cross examination. Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 138 B of the Customs Act. Accordingly, imposition of penalty, relying on the statement of Mr. Anil Jain is bad both in law and on facts and further, relies on the ruling of the Tribunal in the case of Marshal Machado Vs. CC(Export), Mumbai - 2015 (330) ELT 334. 16. Ld. Authorised Representative relies on the impugned order. 17. Having considered the rival contentions, I find that the whole case of Revenue is based on the statement of Shri Anil Jain. I further find that the statement of Shri Anil Jain is third party evidence, which is unsubstantiated. Further, Shri Anil Jain has not been examined in the adjudication proceedings, as required under Section 138 B of the Act and hence, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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