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TMI Blog2009 (3) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... cates, for the Respondent. [Order].- Issue Rule. Mr. Atul Bandhu, Advocate waives notice. With consent of the counsel for the parties, the matter was heard finally. 2. The petitioner claims for quashing of an order dated 30-1-2006 issued by the Central Government in exercise of its revisional powers under the Customs Act. The Central Government affirmed the findings of the adjudicating authority; confiscated foreign currency US $ 73,020, Hongkong $ 1,340, UAE Dirham 50, Singapore $ 54 and certain other assorted currencies. 3. Briefly the facts are that the customs authorities alleged that on specific information from the Directorate of Revenue Intelligence intercepted one Ajay Gulati in the departure lounge of the IGI Airport on the night intervening 11/12-8-2002. The DRI contended that the said person was scheduled to travel in an outbound flight to Bangkok. The said Ajay Gulati along with two others were searched and the DRI claims to have recovered quantities of foreign currencies It is claimed that during the course of follow up action, the joint residence of the said Ajay Gulati and the present petitioner Vijay Gulati were searched on 12-8-2002 resulting in recove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the contentions of Ajay Gulati. It is contended that even the criminal proceedings which were initiated by the respondents for violation of Section 135 of the Customs Act were quashed by the High Court. 6. The revisional authority by its impugned order on the one hand accepted Ajay Gulati's contentions and quashed confiscation. It set aside the orders of the Commissioner of Customs and the adjudicating authority. The revisional authority reasoned as follows with regard to the submissions of Ajay Gulati:- "5. Facts of the present case reveal that in respect of Applicant No. I (Ajay Gulati) the seized foreign currency equivalent to US $ 15,000 in form of Traveller's Cheques were purchased vide cash memo. No.19306 dt. 11-8-02 from an authorized dealer approved as per Sec.10 of FEMA under the Business Travel Scheme in terms of the RBI Scheme contained in memorandum of Instructions, relating to fulfledged money changers allowing up to US $ 25000 to a person, for travel abroad and up to $ 5000 under BTQ (Basic Travel Quota). The payments were made by cheque from Company account and the foreign currency was not concealed and was kept in his hand bag. Similarly, foreign curren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-Appeal. Tentative conclusions, including the charge of under/overvaluation, dummy concerns etc. which were controverted later by documentary evidences, and surmises and inferences based on statements retracted immediately and sundry evidences pieced together but not fully supported by adequate documentary or other evidences (as discussed at pages 21-24 of adjudication order) to aver that the Applicants were 'ineligible travellers' being an inconclusive and legally unsustainable finding cannot therefore form the basis to create and introduce existence of a distant prohibition for justifying confiscation u/s 113 of Customs Act of foreign currencies acquired for export in the prescribed manner and within the permissible ceiling from an authorized dealer, which is a legal and permissible channel. Govt. is thus of the view that confiscation u/s 113 of Customs Act 1962 is not sustainable in respect of seized foreign currencies (TCs and cash) pertaining to Applicant I, II III is therefore set aside as contravention under Customs Act, is not established. Applicants No. V, VI VII in any case having played an indirect and marginal role in procurement of foreign currency from authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired is inescapable." Foreign currency so acquired through illegitimate and non-permissible channel and source thus become "prohibited" and is liable to confiscation u/s 113 of Customs Act if exported or attempted to be exported. An argument in defence based on several case laws has been put up to state that even assuming that the foreign currency was illegitimately acquired no case under the Customs Act for the confiscation u/s 113 of Customs Act is established as the same was seized from the residence and did not involve any attempt to export the same. In this regard Govt. observes that the case Laws cited in support of this contention cannot squarely apply to the facts of this case which are not only different but the attendant circumstances are also peculiar. Even though in respect of the illegally acquired foreign currencies no direct attempt to export the same has been made as pleaded but the maxim of preponderance of probability [ P. Pratap Rao Sait - 1988 (33) E.L.T. 433 (Trib), Satyanarayan - 1987 (29) E.L.T. 450 (Tri.) etc.]J and especially the ratio of the judgment of the Hon'ble Calcutta High Court in Amit Kumar Saha - 2004 (174) E.L.T.158 (Calcutta) upholdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anager who is alleged to have issued the certificates, endorsing the petitioner's stand. It is submitted that the said Bank Manager who has been issued with a notice, being Noticee No. 4 fairly conceded that certificates were issued by him upon asking of the petitioner. In these circumstances, respondents' counsel submitted that this Court should not interfere with the concurrent findings of the authorities under Article 226 of the Constitution of India. 10. Section 2(22) which defines goods inter alia includes currency and negotiable instruments. Section 2(33) which states what are "prohibited goods" reads as follows:- "Section 2(33) prohibited goods means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with" 11. Section 113 of the Customs Act which empowers the concerned authorities to confiscate goods is in the following terms. "113. Confiscation of goods attempted to be improperly exported, etc.: The following export goods s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied goods in relation to which any provisions of Chapter IVB or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened." 12. A textual reading of the above provisions would show that the customs authorities' jurisdiction ordinarily arises where an attempt to export the goods is made. Concededly there can be situations, where the authorities may exercise jurisdiction and visit the premises upon information received of contravention entitling them to exercise powers under Section 113. That is, however, an aspect which this Court should not go into in the present proceedings. What the petitioner argues substantially, is that the revisional authority after having concluded as it did that in the absence of an order by the empowered body or authority under the concerned law i.e. FEMA, it was not open to the Customs authorities to exercise powers and confiscate foreign exchange. That part of the order by which the Central Government quashed the confiscation vis-a-vis Ajay Gulati is not in question; apparently the respondents have accepted it. This would mean that in regard to its basic reasoning regarding illegality and such confiscation, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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