1998 (11) TMI 611

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....egulations Act, 1973 and a penalty of Rs. 10,000.00 has been imposed. 2. The brief facts of the case are as under :- 2.1 On 2-12-1993, the appellant reported to Customs Counter for clearance of the baggage on his way to Moscow, when he was intercepted by the Officers of A.I.U, Customs, Calcutta Airport. On search, US $ 6,000.00 were recovered from the file kept inside the hand-baggage over and above US $ 11,000.00 endorsed in his passport. In his statement before the officers, the appellant submitted that the said dollars were purchased by him from one Mr. Salim in exchange for Indian Currency of Rs. 1,92,000.00. He also disclosed that he was a representative of M/s. Patna Hide Company, Calcutta, which was a Leather Exportin....

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..... The Order of Confiscation was upheld by the Commissioner (Appeals). But the penalty was reduced to Rs. 10,000.00. This Order of the Commissioner (Appeals) is impugned before the Tribunal. 3. Shri P.K. Sengupta, learned Consultant appearing for the appellant, did not challenge the confiscability of the foreign currency, but contended that the same may be released to the appellant on payment of redemption fine. He also argued that the authorities below had acted only on the initial statement of the appellant, which was retracted by him on the first available opportunity. The money in question belonged to the appellant's brother who was having a N.R.I. account and could bring any quantum of foreign exchange into India. This money was....

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....Prohibition" - under Section 125 means not only absolute prohibition but prohibition subject to condition where the condition had not been fulfilled. In this connection, he relied upon the Calcutta High Court's judgment in the case of Sheikh Md. Omer v. Collector of Customs reported in AIR 1967 CAL. 16, as affirmed in appeal by the Honourable Supreme Court in Sheikh Mohd. Omer v. Collector of Customs reported in 1983 (13) E.L.T. 1439 (S.C.) = 1970 (2) SCC 728 (S.C.). As the foreign currency had become a prohibited item, argued learned JDR, Shri Ghosh, the adjudicating authority was not legally bound to give any option to the appellant to redeem the same on payment of fine in terms of Section 125 of the Customs Act, 1962. 5. In his r....

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.... on the ground that the same had been recorded after about four months. The appellant had also produced the letters written prior to the date of seizure by his brother, directing him to bring back the left-over foreign exchange by him during his previous visit. I also find from the relied upon Tribunal's decision that a currency of US $ 9000.00 was released by the Tribunal on payment of a redemption fine, by observing that it was not a case of absolute confiscation, as the non-permission from the Reserve Bank of India had resulted only in a technical mistake. No doubt, there is a condition attached to the export of foreign currency, which makes the same a prohibited item, which comes within the mischief of Section 125 of the Customs Act, 19....