TaxTMI 
TaxTMI 
2010 (9) TMI 820
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....dated 19-8-2005 issued in the one Shri Ravinder Nath Singh for 13900 GBP (Traveller Cheques) and in the name of one Mrs. Renu Mittal for 2400 GBP (Traveller Cheques) respectively. As the said two cash memos were not in his name, a notice was served upon him under Section 102 of the Customs Act. Two independent witnesses were called at this stage. He was carrying one black coloured cloth bag as hand baggage and one black coloured stroller of make "GIANNETTO" as checked in baggage. Thereafter, after complying with the statutory requirements of the Section 102 of the Customs Act the baggage and personal search of Sh. Mittal was conducted and following incriminating goods were recovered:- Indian Currency Cash Foreign Currency Traveller Cheques Personal Rs. 1970/- 50 Euros NIL Hand Baggage NIL 5050 GBP in denomination of GBP 50 Notes, totalling 101 in Numbers GBP 17400 in denomination of five hundred; two hundred and one hundred, issued by Travellers Cheque Association Ltd., under licence of American Express Company Check-in-Baggage NIL NIL Traveller Cheques worth GBP 2400 in plastic CDs. TOTAL Rs.....
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....ide C.No., VIII(AP) 10/P&I/32C/2005/906-914 dated 16-2-2006 answerable to the Joint Commissioner of Customs, I.G.I. Airport, New Delhi was issued to 6 noticees proposing therein to confiscate the impugned seized foreign currency i.e. traveller cheques worth GBP 19800; cash GBP 5050 and cash EURO 50 recovered from Shri Vijay Mittal under Section 113(d), (e) and (i) of the Customs Act read with Sec. 2(33) of the Act, FEMA 1999 being illegal possession/acquisition and attempt to export out of the country along with the seized green coloured pouch, three plastic CDs and one stroller used for concealing/keeping foreign currency under Section 119 of the Act. Penal provisions under Section 114(i) of the Customs Act were also invoked therein for contravention of the provisions of Section 11 of the Customs Act read with Regulation 5 of the Foreign Exchange Management (Export and Import of Currency) Regulations, 2000; Sections 3(a), 5 and 6(3)(g) of Foreign Exchange Management Act, 1999 read with Rules 3, 4 & 5 of 2(c) of the Foreign Exchange Management (Current Account Transactions) Rules, 2000; and Sections 77 and 113 of the Customs Act. 2.4 Adjudicating authority decided the case ....
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....05, deposed that Euro 50 only were brought back by him as unspent money and GBP 5000 were purchased from the market on cash payment. These facts have also been discussed by Joint Commissioner in Para 32 of the O-I-O. Further Shri Vijay Mittal has also not declared the GBP brought back on his earlier visits to the Customs. 4.3 That the Commissioner (Appeals) has erred in holding that any aberration by the moneychanger in releasing foreign exchange would be visited on the moneychanger under FEMA, 1999 and cannot be adjudicated under the Customs Act, 1962. This finding of the Commissioner (Appeals) is wrong inasmuch as - (a) this is contradictory of his other finding that as per Section 2(22) of the Customs Act, "goods" includes currency and foreign exchange is currency and therefore is goods and its import or export is governed under Customs Act 1962 as "goods", (b) in terms of Section 113(d) of the Customs Act, any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in....
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....sp; Now acts constituting offences under the FEMA will be prohibitions imposed by that Act and will, by definition come within the ambit of the phrase "or any other law for the time being in force" in Section 113(d) and thus the goods will be liable to confiscation under Section 113(d) of the Customs Act. It may be noted that violations of other Acts like the Drugs and Cosmetics Act, Wild Life Act, Antiques Act etc. are automatically violations under the Customs Act in view of Sections 111 and 113 and the goods are liable for confiscation. (c) Section 110 of the Customs Act relates to, inter alia, seizure and the class of goods which, as soon as may be after seizure may be disposed off in the specified manner. Under notification 31/86-Customs dated 5-2-1986, as amended, "currency, Indian and foreign" is listed as one of the goods which can be so disposed off. This only reinforces the point that the Commissioner (Appeals) finding that this matter could not have been adjudicated by the Customs is incorrect. (d) his various findings on this matter are mutually contradictory. He has held on the one hand that the "adjudicating authority wa....
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....;That the contents of grounds para 3 are wrong and denied. In this regard the following statement has been made :- (a) That an appeal has been preferred by applicants against the order No. 30 of 2006 dated 20-7-07 passed by Joint Commissioner of Customs, I.G.I. Airport, New Delhi against alleged attempt on the part of applicant to evade the prohibition on taking out of India, the impugned foreign currency in contravention of the provisions of Section 11 of the Customs Act read with Regulation 5 of Foreign Exchange Management (Export & Import of Currency) Regulation, 2000, Section 3(3) of Foreign Trade (Development & Regulation) Act, 1992 read with Rule 2(c) of Foreign Trade (Exemption from Application of Rules in certain cases) Order, 1993 and thereafter the applicant were penalised in terms of impugned order. The appeal was heard on 21-6-07 & Hon'ble Commissioner was pleased to permit the applicants to file written submission, hence the following written submissions were submitted before Commissioner of Customs (Appeals). (b) That Section 2(h) of FEMA, 1999 relates to 'Currency' which incudes all currency notes, postal notes, p....
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....RA) and reiterated the points mentioned in their counter reply filed in response to show cause notice issued under Section 129DD of Customs Act, 1962. As regards respondent in F.No. 380/26/B/08-RA, Ms. Reena Rawat, Advocate neither appeared on behalf of M/s. R.J. Trade Wings (P) Ltd. and nor sought any adjournment. 7. Government has carefully gone through the relevant cases records and perused the impugned orders-in-original and orders-in-appeal. As there are identical/common issues involved in these cases, Govt. takes up all these cases for decision by this common order. 8. Govt. observes that respondent No. 1 were found in possession of various amount of foreign currency i.e. Rs. 1970 (i.e.) 50 Euro and GBP 5050 as cash (FC) & T.C. GBP 19,800 being admitted to be taken out of India although not covered by the Regulations 5, 6, & 7 of the Foreign Exchange Management (Export & Import of Currency) Regulations, 2000 framed under FEMA, 1999 that the respondent did not declare the said impugned currencies to the Customs and only on being asked declared carrying impugned foreign currencies thereby contravening provisions of Section 77 of the Customs Act, 1962. 9.&emsp....