TaxTMI 
TaxTMI 
2008 (1) TMI 215
X X X X Extracts X X X X
X X X X Extracts X X X X
....1 bearing No. A-160/Kolkata/2001 [2001 (135) E.L.T. 237 (Tri.-Kol.)] holding as follows: "5. After carefully considering the submissions and arguments advanced from both sides, we find that the Commissioner has given a categorical finding in the impugned Order to the effect that in the absence of any specific and direct evidence about improper importation and improper exportation the person from whose possession such foreign currency was recovered can be charged only as a carrier of such foreign currency because the actual owner of such foreign currency cannot be identified and the person did not claim the ownership of the same. Thus it is crystal clear that there is no evidence on record to show illegal importation and illegal attempt t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n of the seized currency, Shri Saha had only been charged as a carrier of the foreign currency. Admittedly, Shri Saha was found to be only a carrier in the proceedings commenced under the Foreign Exchange Regulation Act, 1973 and neither had any attempt been made by the person or persons who had en trusted the seized currency to Shri Saha nor has the person to whom it was to be delivered come forward to establish that the same had been lawfully acquired and was entitled to return of the same. In such a scenario, the direction to return the seized currency to Shri Saha, who was not lawfully entiled to possess the same, would defeat the very raison d' etre for Sections 111 and 113 of the Customs Act, 1962, and Section 8(1) of the Foreign E....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment be sent to CEGAT in terms of Section 130D of the Customs Act, 1962, and the learned Tribunal is directed to dispose of the matter in conformity therewith." 4. The applicant, through the Miscellaneous Application under consideration, prays for passing the same Order as was passed by the earlier Bench on 15-2-01 stating that that Order was legally valid and proper and the same cannot be modified. The following grounds have been taken on behalf of the applicant: (i) The Order of the Hon'ble High Court at Calcutta does not contain any advice on a question of law. It is not even an obiter dictum, but is a casual remark. (ii) The earlier findings of the Tribunal are final and the Hon'ble High Court is incompetent to disburb the find....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t since the applicant never claimed the ownership over the foreign currency, the Tribunal in the first place should have upheld absolute confiscation of the same and the Hon'ble High Court has rightly formed the opinion that the Tribunal was not justified in setting aside the confiscation and it has also directed the Tribunal to dispose off the matter in conformity with the Hon'ble High Court's decision. 6.1 Shri Ohri, learned JCDR also brings to our notice that while the Reference Application was before the Hon'ble High Court at Calcutta, Writ Petitions were filed by both the Department and the present applicant before the said High Court and while disposing off these two Writ Petitions by Order dated 20-5-04, the Hon'ble High Court at ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y and unambiguously opined that the earlier Order of the Tribunal dated 15-2-01 had been set aside by the Hon'ble High Court by its Order dated 29-10-03 and further, that the Order of the Tribunal has been specifically held to be not justified in setting aside the Order of Confiscation of the currency seized from the applicant. The Hon'ble High Court through its Order dated 20-5-04 has also directed the Tribunal to act in accordance with the Division Bench decision of the said High Court dated 29-10-03, unless the same is stayed or modified by a superior court. 7.1 Neither side has pleaded before us that the Order dated 29-10-03 of the Hon'ble High Court has been stayed or modified by a superior court. Hence, respectfully following the O....