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TMI Blog2024 (4) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Officers for further proceedings. The AIU officials verified the total quantity of foreign currency in presence of the Appellant and panchas and the same was found matching with the quantity mentioned by the CISF officials. The quantity of foreign currency found was as follows:- Description of Foreign Currency Denomination wise Total Currency Rate Value in INR Denomination No.of pcs UAE Dirhams 1000 136 136000 19.10 2597600 UAE Dirhams 500 306 153000 19.10 2922300 Saudi Arabian Riyals 500 457 228500 18.70 4272950 Saudi Arabian Riyals 100 97 9700 18.70 181390 US Dollar 100 62 6200 71.60 443920 Kuwait Dinar 20 57 1140 232.45 264993 Kuwait Dinar 10 41 410 232.45 95305 Kuwait Dinar 5 30 150 232.45 34868 Bahrain Dinar 20 12 240 186.00 44640 Oman Riyal 50 7 350 188.51 65979 Oman Riyal 20 5 100 188.51 18851 Qatar Riyal 500 40 20000 19.30 386000 Total 1,13,28,795 3. On being questioned by the Officers as to whether the Appellant had obtained any authorisation/permission from Reserve Bank of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was confiscated absolutely under Section 113(d), (e) & (h) of the Customs Act read with the provisions of Foreign Exchange Management (Export and Import of currency) Regulations 2015 made under the FEM Act 1999. Further penalty was imposed Rs.11,33,000/- each under Section 114 of the Customs Act and Section 13(1) of the FEM Act 1999. 9. Being aggrieved, the Appellant preferred appeal before the Commissioner (Appeals) interalia on the grounds that there was no ground for confiscation of foreign currency under the Customs Act, when in fact the Appellant have admittedly not entered into Customs area. Admittedly, Appellant was intercepted by the CISF Officers before he could enter the airport and approach the airline counter for boarding pass. The Appellant produced the copy of travel status of his ticket which shows - 'no show', from the website of the airline - Indigo. Thus, the whole case have been made out by the Customs Officers on assumption on presumption, as admittedly Appellant was intercepted by the CISF Officers before he could enter the airport. It is only after a passenger obtains the boarding pass from the concerned airline and thereafter proceeds for security check a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake any declaration as required under Section 77 of the Customs Act, which fact is supported by the admitted fact that the Appellant had not even obtained boarding pass to enter the International area/Customs area, warranting filing of declaration under Section 77. Thus Section 113(h) is also not invokable. 14. The Appellant had also requested for cross-examination of the punch witnesses during the course of personal hearing. However, the Commissioner (Appeals) observed that the punch witnesses have already been examined during adjudication proceedings and their re-examination is not going to serve any purpose and accordingly the same was rejected. He further held that the offence in the facts of the present case have been committed in the airport and in the customs area and the Superintendent of customs is the proper officer for investigation and seizure, reflected under the Customs Act, though provisions of FEM Act were also invoked. The Commissioner (Appeals) was pleased to dismiss the appeal. 15. Being aggrieved, the Appellant is in appeal before this Tribunal interalia on the grounds that Section 100 provides for power to search a person who has landed or about to board, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, is wholly irrelevant and misplaced. 21. As required under Section 113 (d) of the Act, confiscation is attracted of any goods attempted to be improperly exported or brought within the limits of any customs area for the purpose of being exported, contrary to any provision under the Customs Act or any other law for the time being in force. 22. Further urges that the provisions under Section 113(e) are not attracted as the goods have not been found concealed in any container in the customs area for the purpose of exportation and further the provisions of Section 113(h) are also not attracted in absence of any appropriate declaration under Section 77, as the occasion for declaration or stage for declaration had not arisen. 23. It is further urged that in the facts of the instant case, foreign currency was not brought within the limits of customs area. Further, customs area is defined in Section 2(11) of the Act - "customs area means the area of customs, station or a warehouse and includes any area in which imported goods or export goods are ordinarily kept before clearance by Customs Authorities". 24. In the facts of the present case, there is no scope to contend that the goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the impugned order. 27. Having considered the rival contentions, we find that admittedly Appellant was intercepted by the CISF officials outside the customs area. The Appellant had admittedly not approached the Airlines counter. This fact is supported by the no-show status of the ticket of the Appellant on the website of the airline. In the circumstances, the Appellant had not entered the customs area, nor there is any failure on the part of the Appellant to make appropriate declaration as required under Section 77 of the Customs Act. Under these circumstances, we find that the provisions of Section 113(e) and (h) are not attracted. At best, there is only a case of intention or attempt to export, as the Appellant was approaching the airport with intention to travel outside India, he was also having a valid ticket. We agree with the conclusion of the Adjudicating Authority that foreign exchange or currency is prohibited goods and therefore liable for confiscation. However, we do not agree that it is correct to deny redemption of the same under Section 125 of Customs Act as the discretion is to be exercised having regards to all relevant facts and cannot be arbitrary. Considerin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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