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TMI Blog2024 (8) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... ar that he was authorized to exchange. INR into UAE Dhirams though he has exchanged the money without any legal document admittedly no invoice was issued but this admission proves violation of conditions of his license or the respective regulations and the directions of RBI, if any. In no circumstance the act of the licensed money exchanger to exchange the money but without issuing an invoice cannot, from any stretch of imagination, be called as an act of illegal export or illegal import. It is further observed that appellant premises were also search and nothing incriminating which may suggests his involvement/indulgence in any kind of illegal exports or imports. In fact, the original adjudicating authority has refrained itself from ordering confiscation of money as was detained from the appellant premises at the time of search. I also observe that there is no finding discussed by the adjudicating authorities below while imposing penalty on the appellant under Section 114, Section 114 AA and Section 117 of the Customs Act, 1962. Under Section 114 penalty is to be imposed for attempts to export goods improperly - the appellant has not contravened any provision of the Customs Act no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d son duo. Based on the said statement search was conducted in the office premises of M/s. Jyoti Money Exchange (P) Ltd, Palika Parking, Connaught Place also on 30.08.2017 itself. Foreign exchange/INR equivalent to Rs.16,11,666/- was detained vide Panchanama of the said date. The statement of Shri Gurpreet Singh alias Sonu was also got recorded who denied ever meeting to Shri Suneet Kalra and Shri Rajinder Kalra. However, from the call records obtained from the respective mobile network operator i.e. Airtel it got revealed that Shri Gurpreet Singh/the appellant herein was communicating with Shri Suneet Kalra multiple times. Specifically on 26.08.2017 and 29.08.2017 the dates when Shri Suneet Kalra departed from India. He and Shri Rajinder Kalra both since had admitted to have illegally imported gold which was purchased against the foreign currency procured from Shri Gurpreet Singh of M/s. Jyoti Money Exchange (P) Ltd. that show cause notice was served upon the present appellant along with Shri Suneet Kalra and Rajinder Kalra alleging that foreign currency equivalent to Indian Rupee (INR) Rs.4135800 has illegally been sold by the appellant on 29.08.2017 and for currency equivalent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s nothing in the statements which suggest that, anything extra or more was paid to the appellant for the purchase of the foreign currency; also the notice 1 and 2 have dule stated that the gold was smuggled after they heard about the quick profit in sale of gold, so Noticee No. 1 and 2 thought of themselves buying gold and bringing the gold to India without payment of customs duty. They also stated that, the gold was purchased from the saving and the profits they earned from their work. Despite this there is nothing on record to prove that appellant at all was the beneficiary of the gold imported illegally by both of them. Learned counsel has relied upon the following decisions: (i) Ingram Micro India Pvt. Ltd. Vs. Commissioner of Customs vide Order No. 51067/2019 dated 08.04.2019 CESTAT NEW DELHI (ii) Reported as 2019 (369) ELT 1683 (GOI) In RE: Jitender Singh (iii) Commissioner of Customs Vs. M/s. Trinetra Impex Pvt. Ltd. passed by the Hon ble Delhi High Court vide Order No. CUSAA 195/2019, CM APPL 30592/2019 dated 11.10.2019. Accordingly, the order under challenge therefore prayed to be set aside and appeal is prayed to be allowed. 4. While rebutting these submissions, learned D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uneet Kalra and Shri Rajinder Kalra for these acts. Both of them have also been held to have violated the provisions of Foreign Exchange Management (posession and retention of foreign currency) Regulations, 2015. The order in question has also not been challenged by either of them. With respect to the present appellant, the allegations are that the said illegally exported currency and also got exchanged INR from the present appellant who is also been alleged of conniving with Shri Suneet Kalra and Shri Rajinder kalra in the act of illegally exporting the foreign currency and illegally importing the gold solely on the basis of call records of the mobile numbers of three of them that appellant had communicated with Shri Suneet Kalra on 26th August and 27th August when Shri Suneet Kalra had departed from India. Commissioner (Appeals) has confirmed the imposition of penalty upon him on the ground of admission by Shri Suneet Kalra and Shri Rajinder Kalra to have purchased currency from the present appellant in cash without legal documents. To my understanding this only evidence against the present appellant i.e. the call records and the voluntary statements of admission of Shri Suneet K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 962. Under Section 114 penalty is to be imposed for attempts to export goods improperly. In the light of entire above discussion it has already been observed that the role of appellant is confined only to exchanging money though without issuing an invoice. The said act cannot be an act of attempting improper export of goods. Penalty under Section 114AA is to be imposed for use of false and incorrect material but I do not find anything on record as to what false or incorrect material is found being used by the appellant. There in not even an allegation for the same in the show cause notice. Penalties under Section 117 of Customs Act are to be imposed for contravention etc. which are not expressly mentioned. But the provision makes it clear that the contravention has to be vis- -vis the provisions of the impugned act the abatement for any such contravention or on account of failure to complied with the provisions but of the Customs Act to which there is no penalty elsewhere is provided in the act. The above discussion is clear enough to hold that appellant has not contravened any provision of the Customs Act nor has failed to comply therewith. Hence I hold that the penalties under th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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