2005 (9) TMI 361

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....ly legal in nature. In view of this accepted position, I proceed, therefore, to decide the appeal itself after waiving the requirement of pre-deposit. 4. On 20-11-03, the appellant was intercepted by officers of the Air Intelligence Unit at Chhatrapati Shivaji International Airport, Mumbai, Foreign currency, found in his possession, as well as Indian currency to the tune of Rs. 72,000/-, was seized, under a Panchanama. The proceedings culminated in the issuance, to the appellant, of a Show Cause Notice, dated 12-5-04, proposing confiscation of the said currency. The proposals in the said Show Cause Notice were confirmed, in toto, by the Additional Commissioner, vide his Order-in-Original dated 7-3-05 supra.  5.Most of the fi....

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.... the appellant, on an involved interpretation of Regulation 7(4) of the Foreign Exchange Management (Export and Imports of Currency) Regulations, 2000 [hereinafter referred to as "the FEM (E & I) Regulations"], which reads as under : "Any person resident outside India may take out of India unspent foreign exchange not exceeding the amount brought in by him and declared in accordance with the proviso to clause (b) of Regulation 6, on his arrival in India." Clause (b) of Regulation 6 of the FEM (E & I) Regulations, it may be noted, permits the import of foreign currency, not in excess of US $ 5000, at any one time, without declaration.  8.The case put forth by the appellant before the Commissioner (Appeals) was that the foreign ....

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....Section 77 of the Act could be attributed to the appellant. His ultimate decision that the appellant had "attempted to smuggle" out the foreign currency, however, appears to be clearly contradictory to the factual findings entered by him prior thereto, and set out above. The concept of when "attempt" can be said to have taken place has been examined, in detail, by the Hon'ble Orissa High Court in Ramakrishna Aggarwal v. C.C.E. - 1989 (39) E.L.T. 183 (Ori.), wherein the judgment of the Hon'ble Supreme Court in Malkiat Singh v. State of Punjab, AIR 1970 S.C. 713, was relied upon, as under: "In AIR 1970 SC 713, Malkiat Singh and Another v. The State of Punjab, a distinction was drawn between preparation and attempt. It was held that a prepa....

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....ceed further in its progress, the acts already done would be completely harmless" (Emphasis supplied) Applying the above definitive test laid down by the Hon'ble Supreme Court, the inescapable conclusion is that the Commissioner (Appeals) erred in holding the appellant guilty of "attempting to smuggle out" the foreign currency seized from him. Had the appellant changed his mind before he reached the Customs counter, there would have been no offence attributable to him. It cannot, therefore, be said that an "attempt to smuggle out" foreign currency could be said to have been committed by the appellant. The same reasoning would apply to the Indian currency seized from the appellant, though no findings have been entered by the Commissioner ....