TaxTMI 
TaxTMI 
2009 (3) TMI 112
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....at the said person was scheduled to travel in an outbound flight to Bangkok. The said Ajay Gulati along with two others were searched and the DRI claims to have recovered quantities of foreign currencies It is claimed that during the course of follow up action, the joint residence of the said Ajay Gulati and the present petitioner Vijay Gulati were searched on 12-8-2002 resulting in recovery of the amount of currencies mentioned earlier. The petitioner claimed ownership of the seized currency by his letter dated 16-8-2002, to the DRI. He contended that the currency was legally acquired from certain overseas visiting buyers as advance payments against their export orders, which was permissible in law. According to him, all relevant information and documents including Currency Declaration forms issued by the Customs Department to the buyers upon their arrival, along with authority letters in his favour, evidencing payments were also shown to the customs authorities. Apparently, the customs authorities further recorded a statement under Section 108 of the Customs Act on 20-9-2002. 4. On 10-2-2003, the customs authorities issued show cause notices to the petitioner, his son Ajay Gul....
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....he Business Travel Scheme in terms of the RBI Scheme contained in memorandum of Instructions, relating to fulfledged money changers allowing up to US $ 25000 to a person, for travel abroad and up to $ 5000 under BTQ (Basic Travel Quota). The payments were made by cheque from Company account and the foreign currency was not concealed and was kept in his hand bag. Similarly, foreign currency of US $ 27000 each in form of pre authenticated Traveller's Cheques under their signatures and US $ 2000 each in cash carried by Applicant No. II (Kapil Rani) and Applicant No. III (Jatin Kapur) respectively were drawn for export from payment through cheque/Demand Draft against M/s. LG Enterprises and M/s. Gaurav Enterprises. This was again issued by an RBI authorized money exchanger against Business Travel Scheme and Basic Quota. These currencies were also recovered from their respective possession found in hand bag and not concealed. The currencies were thus within legitimate and permissible ceiling of RBI and acquired also for export from an RBI authorized money exchanger, a legally designated and legitimate channel for such transaction and for which no declaration for export was also necessar....
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.... thus of the view that confiscation u/s 113 of Customs Act 1962 is not sustainable in respect of seized foreign currencies (TCs and cash) pertaining to Applicant I, II & III is therefore set aside as contravention under Customs Act, is not established. Applicants No. V, VI & VII in any case having played an indirect and marginal role in procurement of foreign currency from authorized dealer as per adjudication order itself are also consequently not liable for penal action u/s 114 of Customs Act and the penalties against them are also set aside. However, the competent statutory authorities are free to initiate any action if not already initiated whether the confiscation or for penalty in case of alleged contravention of any of the provisions of FEMA/Rules, Regulations etc. framed thereunder or any directives of the RBI." 7. As far as the present petitioner is concerned by the very same impugned order, the revisional authority reasoned as follows and upheld the confiscation:- "The second part of the case relates to the seizure and absolute confiscation of foreign currencies amounting to US $ 73020, Hong Kong $ 1340, UAE Dirhams 50, Singapore $ 54 and other assorted currencies r....
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....acquired foreign currencies no direct attempt to export the same has been made as pleaded but the maxim of preponderance of probability [P. Pratap Rao Sait - 1988 (33) E.L.T. 433 (Trib), Satyanarayan - 1987 (29) E.L.T. 450 (Tri.) etc.]J and especially the ratio of the judgment of the Hon'ble Calcutta High Court in Amit Kumar Saha - 2004 (174) E.L.T.158 (Calcutta) upholding liability to confiscation and ordering absolute confiscation under Section 113 of the the Customs Act in a comparable situation renders the seized foreign currencies in the present case also liable to confiscation u/s.113 of Customs Act. Govt. therefore finds that the orders of absolute confiscation of foreign currency seized from the residence as well as that of penalty imposed on Applicant No. 4 are sustainable and accordingly does not want to interfere with the same. 7. As regards Applicant No. VIII, i.e., AVG Impex, no clear and specific charge of clandestine operation has either been clearly brought out or proven in the Adjudication Order/Order-in-Appeal. Generalized findings lacking in corroborated and specific details are however mentioned at para 14 of the Adjudication Order. In the order itself there ....
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....such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with" 11. Section 113 of the Customs Act which empowers the concerned authorities to confiscate goods is in the following terms. "113. Confiscation of goods attempted to be improperly exported, etc.: The following export goods shall be liable to confiscation:- (a) any goods attempted to be exported by sea or air from any place other than a customs port or a customs airport appointed for the loading of such goods; (b) any goods attempted to be exported by land or inland water through any route other than a route specified in a notification issued under clause (c) of section 7 for the export of such goods; (c) any dutiable or prohibited goods brought near the land frontier or the coast of India or near any bay, gulf, creek or tidal river for the purpose of being exported from a place other than a land-customs station or a customs port appointed for the loading of such goods; (d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contracted to any prohibition imposed....
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....erned law i.e. FEMA, it was not open to the Customs authorities to exercise powers and confiscate foreign exchange. That part of the order by which the Central Government quashed the confiscation vis-a-vis Ajay Gulati is not in question; apparently the respondents have accepted it. This would mean that in regard to its basic reasoning regarding illegality and such confiscation, there is no dispute. However, by a curious anomaly, the Central Government in the very same order proceeded to uphold the confiscation order as far as it related to the petitioner. 13. Now, the jurisdiction of the Customs authorities vis-a-vis the two sets of foreign exchange-one seized near the Airport and the other seized subsequently was on the basis that they formed part of the same transactions or arose out of the statement recorded in the first seizure. Such being the case and the notices having been issued as a part of the same investigation process, the Central Government could not have adopted a schizophrenic approach; on the one hand holding that the confiscation was unauthorized, and on other, upholding the confiscation in the absence of such order in the petitioner's case. The order no-where d....