2020 (11) TMI 894 - Commissioner - Customs

Appeal rejected, order upheld for foreign currency confiscation under Customs Act & FEMA

Shri Suresh Singh Rawat Versus Assistant Commissioner of Customs International Airport, Sanganer, Jaipur

The appeal was rejected, and the impugned order was upheld, confirming the confiscation of the foreign currency and the penalties imposed on the ... Smuggling - Gold - Foreign Currency - Baggage Rules - appellant denied having any legal documents or any approval/ permission from the Reserve Bank of India - HELD THAT:- The appellant had improperly attempted to export the foreign currency totally valued at on 30.7.2018 i.e. at the time of his departure, by bring the said impugned goods in Customs Area as well as by taking many such deliberate overt steps such as (i) booking of Air ticket PNR670P21N for 30.07.2018 by Air India Express flight IX 195 to go to Dubai; (ii) His carrying the said foreign currency in a concealed manner in his baggage for avoiding detection in X-ray at the airport; (iii) His name was very much in the Passenger Air Manifest evidencing that he was going from Jaipur to Dubai on 30.07.2018; (iv)the recovery and seizure of impugned goods from his accompanied baggage : and (v) that he admitted in statement that he had agreed to commit this offence of smuggling of foreign currency in greed, all these preparedness are such deliberate overt steps which manifests his clear intention to illegally export foreign and Indian currency. I further find that the impugned goods i.e. the foreign was being carried by the appellant without any legal documents of possession and without any approval/permission of the Reserve Bank of India, thus being prohibited and liable to confiscation. It is quite evident that the appellant attempted to smuggle the impugned currency out of India in contravention of the provisions of Customs Act - the Export of Foreign Currency is not allowed by an Indian resident or foreigner residing in India, going out of India, in terms of Section 3 & 4 of the Foreign Exchange Management Act, 1999 read with regulation 3, 5 and 76 of the Foreign Exchange Management (Export and Import of Currency) Regulation, 2015, Rule 7 of the Baggage Rules,2016 and Section 77 of the Customs Act, 1962. I therefore, hold that the impugned goods alongwith other goods recovered and seized from the appellant on 30.07.2018 at the International Airport Jaipur have been correctly confiscated under Section 113(d), 113(e) and 119 of the Customs Act, 1962. The contention of the appellant, that the statements recorded have been partly accepted and the part wherein he had mentioned the name of Shri Madan Tawani as the real owner of the currency has been absolved, is not acceptable - In the instant case the impugned goods were recovered from the possession of the appellant while he was going out of India, as the case has been booked on the basis of the corroborative evidence on record and not only the statement. Further the contention of the appellant that there is no provisions in the law which prescribes conditions of/denies or prohibits carrying own earned foreign currency of whatever amount, while going to a foreign destination is not acceptable, as the appellant has himself admitted that the provisions referred do not exactly cater to the situation in the impugned case - the provisions of the law with regard to bringing in or taking out of India Foreign currency or Indian currency are very specific and are to be strictly adhered to in all circumstances and situations. In the instant case the appellant intentionally in contravention of the provisions of law attempted to smuggle Foreign Currency out of India. Penalties - HELD THAT:- The appellant was actively involved in the attempt to illegally export the impugned goods recovered and seized from his possession, which he had full knowledge were liable to confiscation under Section 113 of the Customs Act, 1962, Thus by carrying such an act in contravention of the provisions of the Customs Act, 1962 he has rendered himself liable for penalty - There are no reason to interfere with the findings of the adjudicating authority regarding imposition of penalty on the appellant in the instant case. The statements and circumstantial evidences of the case proved that the appellant had knowingly and intentionally attempted to illegally carry out the Foreign currency out of India while departing for Dubai on 30.07.2018 - Penalty u/s 114AA upheld. Appeal dismissed - decided against appellant. Issues Involved:1. Legality of the foreign currency export.2. Confiscation of foreign currency.3. Imposition of penalties.4. Validity of the appellant's statements.5. Applicability of Foreign Exchange Management Act (FEMA) and Customs Act provisions.Detailed Analysis:1. Legality of the Foreign Currency Export:The appellant was intercepted at Jaipur International Airport while attempting to travel to Dubai with foreign currency valued at INR 8,73,622/- concealed in his baggage. The appellant did not possess any legal documents or approval from the Reserve Bank of India (RBI) as required under Section 3 of the Foreign Exchange Management Act, 1999, and related regulations. The appellant admitted that the currency was given to him by another individual for delivery in Dubai, indicating an attempt to smuggle the currency out of India in contravention of FEMA and Customs Act provisions.2. Confiscation of Foreign Currency:The foreign currency was seized under Section 110(1) of the Customs Act, 1962, based on the reasonable belief that it was being smuggled out of India. The adjudicating authority confiscated the currency under Sections 113(d) and 113(e) of the Customs Act, 1962, as the export of such currency without proper documentation is prohibited. The blue-colored trolley bag used for concealment was also confiscated under Section 119 of the Customs Act, 1962.3. Imposition of Penalties:The appellant was penalized under Sections 114 and 114AA of the Customs Act, 1962. A penalty equivalent to the value of the seized currency (INR 8,73,622/-) and an additional penalty of INR 20,000/- were imposed. The adjudicating authority found that the appellant had knowingly and intentionally attempted to export the currency illegally, rendering himself liable for penalties under the relevant sections of the Customs Act.4. Validity of the Appellant's Statements:The appellant's statements recorded under Section 108 of the Customs Act, 1962, were considered voluntary and without coercion. The appellant did not retract these statements, and they were deemed sufficient to form the sole basis of the conviction. The appellant's claim that the currency was his hard-earned money from working in Dubai was not substantiated with evidence, and his explanation for carrying the currency was found to be an afterthought.5. Applicability of FEMA and Customs Act Provisions:The export of foreign currency by an Indian resident is strictly regulated under FEMA and related regulations. The appellant's actions were in clear violation of these provisions. The adjudicating authority referenced multiple judgments from the Supreme Court and High Courts to support the confiscation and penalties imposed. The appellant's contention that there were no specific provisions prohibiting the carrying of foreign currency was dismissed, as the law requires strict adherence to the regulations governing the export of currency.Conclusion:The appeal was rejected, and the impugned order was upheld, confirming the confiscation of the foreign currency and the penalties imposed on the appellant. The adjudicating authority found no reason to interfere with the findings, as the appellant's actions were in clear violation of the Customs Act and FEMA provisions.