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TMI Blog2002 (5) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... currency equivalent to approximately Rs. 58 lakhs which was recovered from a wardrobe in the premises of a flat in his name, were attempted to be smuggled out of India. The penalty on A2 (Shri Manoj Khatwani) was levied, for the reason, that he provided the Indian currency to A1 to enable A1 to purchase foreign currency. 3. We have heard both sides and consider the matter and find - (a) Appellant A1, an employee of Air India was working in its Operations Department. The Officers of the Narcotics Cell, Customs (Prev.) Commissionerate, Mumbai, searched a residential premises situated at 103, Hibiscus, Aram Society Road, Vakola, Santacruz (East), Mumbai-55 standing in the name of A1 on 8-5-1998. The door of that flat was opened to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nama of the recovery of foreign currency, it was apparent that when the officer rang the bell of the said premises, the door was opened by a person, who identified himself as A1 and was A1, and during the course of this search, a black colour Polyethylene bag kept in the wooden cupboard (wardrobe) was found containing foreign currency notes. No documentary evidence of illicit possession of this foreign currency could be produced or found. The currency was seized and sealed with the signature of A1. Therefore, the complaint of A1, that the premises were not duly searched by the Officers were not competent to conduct the search was not accepted. The plea of A1 of his being not found on the premises, was not credible plea. We find no reason to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits his presence therefore we reject the retraction made relied upon the case of K.I. Pavunny - 1997 (90) E.L.T. 241 (S.C.), Naresh J. Sukhwani [1996 (83) E.L.T. 258 (SC) = 1996 (62) E.C.R. 366 (S.C.) and since the retracted statement of A1 is corroborated by the statement of Muthukani that he had received foreign exchange in the past from A1 and smuggled it out of India. That transaction does not appear to be a past of the proceedings herein. (d) The learned Departmental Representative supports the order and submitted that there was an attempt to smuggle out the currency from India which was foiled by the action of the Officers. The involvement of A1 and A2 has been brought out very clearly. (e) We have considered the liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 994 (4) RLT (S.C.)], the Supreme Court has considered 'export' to consist of a string of movements. The procurement of foreign currency and bringing them to the Vakola flat would not constitute, therefore attempt to 'Export from India', even if movement be part of same transaction, as held in this case by the Apex Court. In Export movements, the collection and storage at the flat in Vakola, of foreign exchange, for eventual handing it over to the pilots, by A1, for smuggling out of India may be an important leg of a criminal conspiracy to smuggle out the same. However it will constitute only an 'intention' or 'preparation' to smuggle export the foreign currency and not attempt to export. (g) 'Preparation' and 'intention' to export, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge of mind, as submitted by learned Advocate viz. a greater premium available in the country on resale of seized foreign currency in the 'Black Market'. Collection of foreign exchange may be a strong link, but the next string in the Export "movement" to constitute attempt has to comeforth in the enquiries made. The statement of Maruthakani only corroborate the modus operandi and not necessarily the 'next string of Export'. (h) Applying the test has brought out in para 31 of the decision reported at 1983 (13) E.L.T. 1637 (S.C.) Supra. It is found by us that the alleged collection of foreign exchange and keeping it in the Vakola flat which was detected by the officers could not be considered to be a foiled attempt of export as was bein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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