TaxTMI 
TaxTMI 
2019 (11) TMI 70
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....with Regulation 3 of FEMA (Export & Import Currency) Regulation, 2007, penalty proposed under Section 114 of Customs Act, 1962 against him and his wife Smt.Renuka Vasant Khakkar. On adjudication, the Indian currency of Rs. 22,50,000/- was directed to be absolutely confiscated and penalty of Rs. 45.00lakhs imposed on Shri Vasant Kumar Khakkar and penalty of Rs. 22,50,000/- on Mrs. Renuka Vasant Khakkar under Section 114 of Customs Act, 1962. Hence, the present appeals. 3. At the outset, the learned Advocate Shri Vishal Agarwal for the Appellants has submitted that on 18.05.2009, the Appellant Shri Vasant Kumar Khakkar entered the Nagpur Airport to board the Air Arabia Flight No.G-9-410 to travel to Sharjah. He went to the baggage screening counter to have these bags screened and for sealing the same so that he could proceed to the airlines counter for check-in and handing over the baggage. While screening the baggage, CISF officers noticed Indian currency in the said baggage and on being asked, the Appellant Shri Vasant Kumar Khakkar informed that it was being carried to purchase jewellery from Sharjah for the wedding to be held in his family. On being informed by CISF about such ....
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.... export of Indian currency by continuing with the journey but expressed his desire to go back with the currency and obtain necessary approval from the concerned authorities before such currency was seized by the Customs officers. Hence, the allegation of attempting illegal export of Indian currency is not sustainable against the Appellant. 5. Further, the learned Advocate has submitted that penalty imposed on Mrs. Renuka Vasant Khakkar, wife of Shri Vasant Kumar Khakkar is totally un-tenable as there is no evidence on record to show that the she had in any manner contravened the provisions of Section 114 of Customs Act, 1962. The Appellant Mrs. Renuka Vasant Khakkar, in her statement, even though disclosed that Rs. 22,50,000/- Indian currency was obtained by sale of jewellery and to be carried by her husband on his visit to Sharjah but categorically stated that she was unaware of the permission required to be obtained from RBI or whether her husband obtained any such permission. Thus, mere knowledge on the part of the Appellant Mrs. Renuka Vasant Khakkar that her husband was carrying the Indian currency would not render her liable for penalty under Section 114 of Customs Act, 196....
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....ecided to go back which itself indicates his mental condition that he had no intention to declare the currency to the Customs. It is his contention that in the event, he has intention to declare the currency to the Customs and declare the same which could have been verified by the Customs at the time of making declaration. Besides, the Appellant had not carried with him any proof relating to source of procurement of such currency and the same should have been kept with him for production of demand. Therefore, the plea that he has not reached the Customs counter for declaration of the currency has no substance. In support of his submission, the learned A.R. for the Revenue refers to the judgment of Hon'ble Supreme Court in the case of State of Maharashtra Vs Mohd. Yakub & Others - 1993 (13) ELT 1637 (SC). Applying the ratio laid down in the said judgment, it is clear that there is an intention to carry the Indian currency outside India is established and attempt to commit the said offence is also evident when the Appellant bought a ticket to travel to Sharjah after arranging the Indian currency by selling the gold, for exportation and entered the International Airport at Nagpur.....
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....eing exported, contrary to the any prohibition, would result into confiscation. In the present case, the goods have been brought into the airport by the Appellant Shri Vasant Kumar Khakkar with an intention to take the same to Sharjah. However, on being detected while screening the baggage by CISF, it is their argument that he has expressed his desire to return back instead of continuing his journey, but the customs authorities seized the same. Therefore, their plea that the action of the Appellant has remained at the stage of 'preparation' only and no attempt has been made to export the Indian currency out of India. 10. There is no quarrel on the issue that the Indian currency when attempted to be exported out of India beyond the prescribed limit is liable to confiscation in view of the principle laid down by the Larger Bench of this Tribunal in the case of Peringatie Hamza Vs CC (Airport), Mumbai - 2014 (306) ELT 332 (Tri-LB). 11. The dispute centres around the fact that there has been no attempt on the part of the Appellant to export the Indian currency out of India; it is their argument that it could be at best a preparation. Therefore it is relevant to understand the meani....
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....ar, (1962) 2 SCR 241, there is a distinction between `preparation' and `attempt'. Attempt beings where preparation ends. In sum, a person commits the offence of "attempt to commit a particular offence" when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence." 12. From the statements furnished by the Appellant Shri Vasant Kumar Khakkar it reveals that the Indian currency was carried in his baggage with an objective to take the same out of India. The same facts also confirmed by his wife Smt. Renuka Khakkar that the said amount of Indian Currency was obtained by selling her jewellery by her husband to carry with him to Sharjah. Thus the intention of the Appellant to take the Indian Currency to Sharjah after procuring the same on sale of his Wife's jewellery was clear. The second step also completed, when he took the Indian currency to Air port the customs notified area for his onward journey to Sharjah. It is his content....