2014 (8) TMI 247

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....emption fine and penalty." 2. Heard both sides. 3. Shri Anil Balani, learned Advocate for the appellant submits that on the basis of intelligence, the appellant was intercepted on 08.12.2004 and it was found that the appellant is having Indian currency of Rs. 24,17,500/- which was not declared and are not permitted by Reserve Bank of India (RBI) for export. Therefore, the Indian currency was absolutely confiscated and a penalty of Rs. 2,00,000/- was imposed. 4. He submits that section 125 of the Customs Act, 1962 deals with the confiscation which is reproduced as under:-     SECTION 125. Option to pay fine in lieu of confiscation. - (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it....

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....that without prejudice to the provisions of sub-regulation (1), RBI may on application made to it and on being satisfied that it is necessary to do so, allow a person to take or send out of India or bring into India currency notes of Government of India and/or of RBI subject to such terms and conditions as the Bank may stipulate. 3.2 It is also submitted on behalf of the appellant that although Regulation 3(1) provides that Indian currency of Rs. 10,000/- per person can be allowed to export but if a person wants to take more Indian currency outside India he has to seek permission from RBI to do so and RBI on being satisfied may allow to take more currency outside India subject to terms and conditions. These Rules and Regulations have been ....

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....e learned counsel has also relied on the decision of this Tribunal in the case of Commissioner of Customs, Chennai vs. AmanulahAbul Hassan - 2009(247)ELT 331(Tri.Chennai). In that case also the currencies were absolutely confiscated but the Tribunal exercised its powers to allow the said goods on payment of redemption fine as section 125 of the said Act provides a discretionary powers to the proper officer to allow the goods to redeem on payment of fine in case of prohibited goods. Therefore, in this case the adjudicating authority has rightly absolutely confiscated the Indian currency. It is the discretion of the authorities to consider (the facts and circumstances of the case) and thereafter to arrive at a decision that the same can be re....

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....wherein the Hon'ble Apex Court has examined and observed that the word 'regulate' would mean to control or to adjust by rule or to subject to governing principles whereas the word "prohibit" would mean to forbid by authority or command. The element of restriction is inherent both in regulative as well as in prohibitive or preventive measures. It was further observed that regulation promotes the freedom or the facility which is required to be regulated in the interest of all concerned whereas prohibition obstructs or shuts off or denies it to those to whom it is applied. 7.1 These observations of the hon'ble Apex Court are in a case where the exporter entered into an agreement for export of pulses to Middle East under a contract....