TaxTMI 
TaxTMI 
TaxTMI 
2026 (1) TMI 1362
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....m of money. From the factual matrix on record, we perceive an elaborate tapestry woven by the investigation into foreign currency (equivalent of Rs. 81,01,421 comprising 50409 US$, 30745 EUR and 25030 GBP) intercepted by security operatives on 20th August 2018 at the international departure terminal while screening Shri Amit Bali, one of the appellants herein and an employee of M/s Salt Experiences and Management Pvt Ltd, another of the appellants herein, as he was about to embark on a British Airways flight from IGI Airport, New Delhi. 2. It is a tapestry so ornate and striking that, leaving aside the legal warp, more than a mere glance is attracted. Apparently, at the behest of his company, he had been tasked with handling the travel, stay and business programme of another passenger on the same flight, Shri Pawan Kant Munjal, Chairman & Managing Director (CMD) of M/s Hero MotoCorp Ltd, which had a standing arrangement with M/s Salt Experience & Management Pvt Ltd for organizing travel and events outside India for promotion of automotive products to be billed 'all inclusively' in India; the contractual responsibility, obligating, inter alia, procurement of foreign currency to b....
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....cation has been imposed on persons and, that too, on several of them. 4. Insofar as the first oddity is concerned, the dropping of proceedings by the adjudicating authority was challenged before first appellate authority by the jurisdictional Commissioner of Customs which, on reversal to fasten detriments, was carried in appeal to the Tribunal by the individual and the setting aside thereof in Pawan Munjal v. Commissioner of Customs [(2024) 20 Centax 318 (Tri.-Del)] found approval in order [final order dated 5th October 2023 in CUSAA 3/2023] of the Hon'ble High Court of Delhi in Commissioner of Customs, New Delhi v. Pawan Kant and further affirmation of the Hon'ble Supreme Court as rightly dismissed for lack of point of law to be determined. The second and third lies before us to adjudge legal perspective in factual context. The first appellate authority took note of prohibition by regulation 5 and restriction by regulation 7 in Foreign Exchange Management (Export and Import of Currency) Regulations, 2000, of the limit for retention in regulation 3 of Foreign Exchange Management (Possession and Retention of Foreign Currency) Regulations, 2015, of provision in master circular [6/....
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.... subject to any prohibition under this Act or any other law for the time being in force.....' in section 2 of Customs Act, 1962, of itself, does not empower or confer power to confiscate absolutely even if goods have been imported contrary to any prohibition; the definition supra has not qualified the expression by 'with its grammatical variations and cognate expressions' and, therefore, assigns such meaning to be superimposed only where 'prohibited goods', in its entirety, is emplaced in the statute. Consequently, while such finding may enable discretion to confiscate absolutely, it cannot be hinged on or hung with 'prohibition' enabling confiscation to arrogate that alternative. 5. While setting aside the confiscability of Rs. 27,89,23,327, as obtained from records of appellant-company, on ground of unsustainability, as well as the confiscability of Rs. 3,72,64,700, ascertained from information on seized 'pen-drive', for want of tenable evidence on illegality of sourcing or export out of India, the impugned order has affirmed confiscability of Rs. 21,35,25,172, for having been carried as 'travel cards' by Shri Amit Bali, though issued to several other employees of M/s Salt ....
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....Hon'ble Supreme Court, objection to disposal other than under revision authority had been raised only to be invalidated. 8. The jurisdiction of customs authorities, enacted to be 'proper officers' in relation to 'goods' at the land, sea and air frontier, is claimed from 'goods' being inclusive of 'currency' and it is normal for passengers crossing 'customs area', in either direction, to carry 'foreign currency' for use or as unused respectively. There is no doubt that section 2(22) defines goods, and without any further elaboration thereto save as including '(a) vessels, aircraft and vehicles (b) stores (c) baggage (d) currency and negotiable instruments; and (e) any other kind of moveable property;' and, in so doing, has expanded from the common perception to articles intended to be accorded special treatment in the statute; at least, as far as the first three are concerned. It needs noting that 'inclusive' definitions are intended to offer clarity, even where propensity to be misconstrued is nearly improbable, that there is no cause for entertaining such misdoubt. 'Conveyances', 'stores' and 'baggage' are exempted from duties und....
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....ation is accordingly rejected." 36. Thereafter, the matter was carried to the High Court by the Revenue and the Calcutta High Court in Commissioner of Customs vs. Vinod Kumar Shaw & Anr. [CUSTA No. 12 of 2003 decided on 14.12.2010] accepted the contention that the appeal would be maintainable before the Tribunal. The observations of the Calcutta High Court are as follows: "Having heard the respective contentions, the point which has fallen for consideration in this matter is whether the learned Tribunal was competent to entertain, hear and decide the appeal under section 129A when the currency notes were seized and on the ground that the said currency notes were in baggage. Therefore, we set out the definition of goods as contained in section 2(22)(d) of the Act as being "currency and negotiable instruments". From a plain reading of the said section, it appears that the goods include varieties of items. Currency and negotiable instrument are two of the items and baggage is another separate item. Therefore, if any of the items is sought to be exported, then the application of the said proviso is possible. No doubt, here the question of jurisdiction is relatable to ....
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....lant has firstly questioned the assumption of jurisdiction by CESTAT and submitted that since the subject matter of the appeal pertained to goods imported or exported as baggage, the same could not have been entertained by CESTAT in light of the Proviso to Section 129A. xxxxx 15. We find ourselves unable to sustain the aforesaid submission bearing in mind the clear import and tenor of the SCN. The SCN did not affect the seizure of the foreign currency on the ground of a violation of the Baggage Rules or the declarations that are liable to be made by a traveler. The SCN itself invoked Section 113(d) of the Act as opposed to clause (h) of that provision. Clauses (d) and (h) of Section 113 read as follows: - ''113. Confiscation of goods attempted to be improperly exported, etc. The following export goods shall be liable to confiscation: xxxx xxxxxxxx (d) 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 force; xxxx xxxxxxxx (h) any [xxx] goods which ....
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....ugned order of 26th August 2025 had held two of the components of the detriments against the appellants to be indefensible with consequent manumission from fine under section 125 of Customs Act, 1962 besides reducing penalties; the competent Committee of Commissioners has not exercised its prerogative empowerment under section 129D of Customs Act, 1962 to direct challenge to this outcome as not being legal and proper. Doubtlessly, 'memorandum of cross-objections' offers 'kiss of life' but, without expanding the scope for cavil, merely lengthens the period of limitation. However, from '(4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).' (emphasis sup....
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....t the 'foreign currency' handed to him with instructions to do so had not been converted into approved instruments owing to paucity of time and that it was clear that failure to do so was but a technical and condonable oversight. According to him, the amount involved was not in excess of total entitlement and that absolute confiscation coupled with harsh penalties was unwarranted. He further contended that there was no prescription mandating use of travel cards, drawn for business purpose, only by persons named in the corresponding application. According to him, with restrictions on currency notes that could be carried and lack of wherewithal for issue of 'travel cards' except to individuals, travel cards could not be bound by such constraints as posited in the impugned order. 14. He further submitted that conformity with the Regulations issued under Foreign Exchange Management Act (FEMA), 1999 and master circular of Reserve Bank of India was academic as, in the scheme of regulation of foreign exchange after repeal of the erstwhile Foreign Exchange Regulation Act, 1973, customs officers were no longer empowered to exercise powers relating to accounting and oversight of 'foreign ....
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....t Act, 1999, in customs officers to inquire, seize and adjudicate on the spot in airports in relation to 'foreign currency' in the hands of passengers, did not flow from Customs Act, 1962 and only for a limited purpose was, according to Learned Senior Counsel, clear reflection of legislative intent in enacting the Foreign Exchange Management Act (FEMA), 1999 as a comprehensive, self-sufficient legislation and in support of which he placed the record of correspondence [letter dated 12th July 2000 from F No. DLA1 (S)/FEMA/Circular/2000] from Enforcement Directorate as below: 'SUB : EMPOWERING OFFICERS OF CUSTOMS AND CENTRL EXCISE UNDER SECTION 38 OF FOREIGN EXCHANGE MANAGEMENT CT, 1999-REGARDING. Sir, The FERA, 1973 stands repealed w. e. f. 1.8.2000. However, certain restrictions were imposed on import and export of currencies and bullion by virtue of Section 13 and 67 of the repealed Act. The restriction were imposed by or under Section 13, 18 (1) (a), 18 (A) and 19 (1) (a) of the repealed Act. In regard to these sections, it was stipulated that Section 11 of the Customs Act, 1962 and all provision is of that Act shall have effect. Application of the Custo....
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....ve effect to the provisions of FEMA. Identical order will also be required for the Assistant Commissioner of Customs and Central Excise as well as for the Assistant Directors of the Director rule of Revenue Intelligence. Yours faithfully, (K.R. BHARGAVA) SPECIAL DIRECTOR OF ENFORCEMENT ENCL : AS ABOVE to Additional Secretary in Department of Revenue, Government of India as genesis of note of discussion below xxxxx Subject: Authorisation of Customs and Central Excise Officers under Foreign Exchange Management Act, 1999, 2. This is; with reference to note above of AS(Admn.) and Chairman, CBEC regarding empowerment of Customs and Central Excise officers under the Foreign Exchange Management Act, 1999 (42 of 1999). 2. The note of Under Secretary (Ad. IC) refers has been made of the letter of Shri K.R. Bhargava, Special Director of Enforcement addressed to Shri G.C. Srivastava, Addl. Secretary (Admn.), Department of Revenue, Ministry of Finance, in which certain, recommendations have been made. These recommendations are as follows:- 1. The Special Director of Enforcement, in his note has pointed out that with the repeal of the Foreig....
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....int of National Security. It is an established fact as stated by our own Intelligence and National Security Agencies but also corroborated by Foreign Intelligence Organisations that large scale crimes pertaining to currency matters as well as Foreign Exchange racketeering are being indulged in by forces inimical to the country's security. Foreign Exchange manipulation and crimes are today not limited only to the big metropolitan cities but are well spread out throughout the country even in mofussil towns and remote villages. It is also well established feet that the Directorate of Enforcement does not have the 'necessary manpower resources/organization to maintain stringent supervision '(which is a dire necessity) over the whole country - and as such necessary provisions were there in the Repealed Act to give powers to agencies like Customs and Central Excise, Revenue Intelligence, etc. who have their persons throughout [he length and breadth of the country and were in a position to deal with crimes pertaining to Foreign Exchange even in remote areas. Any delay to issue necessary orders under the relevant Section i.e. Section 38 of the Foreign Exchange Management Act co....
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....provisions of sections 6(3)(g) and 7(l)(a) of FEMA [F 'A' & 'B']. 4. The proposal received from the Enforcement Directorate also concerns these sections. The powers necessary for the Customs officers will be those of investigation of the offences, reference of these cases by complaint to the adjudicating authority and adjudication of these cases. For this notifications will have to be issued under sections 16(1) [for appointment of the adjudicating authorities], 37(2) [for giving powers of investigation] and [for making a complaint to the adjudicating authority]. 5. We may accordingly, communicate our concurrence about the issue of the proposed notification to Ad.I Section. As the matter concerns Member (Anti-Smuggling) and Member (Customs) also, they may also see before the file goes to the Chairman. (A.K.Pande) Member (L&J) 11-8-2000 xxxxxxx F. No. 1/2/2000-Ad.I-C(Pt) Government of India Ministry of Finance Department of Revenue Subject : Notifications under the Foreign Exchange Management Act, 2000. Consequent on coming into force the new legislation, viz., FEMA, certain notifications and orders were iss....
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....r offences under FERA. As such, authorizing Assistant Directors of Enforcement to file complaints, may not be required because the existing provisions under FERA will be in force for a period of two years. Such an authorization would be required where the cases are to be adjudicated for offences under FEMA. That stage has not yet come as offences under FEMA should first be investigated and then a complaint is to be filed before the Adjudicating Authority. Therefore, this proposal may also wait for some time and may be taken up for consideration along with the consolidated proposal. 5. A.S.(A) may kindly see for consideration and further orders. (V.P. Arora) U.S.(Ad.. I-C) xxxxxxxx F. No. l/2/2000-Adj-C(Pt) Subject:- Notifications under the Foreign Exchange Management Act, 1999. This is a proposal of the Directorate of Enforcement to authorise certain officers of the Directorate as also the officers of Customs & Central Excise/DRI to exercise powers/perform functions under the provisions of Foreign Exchange Management Act, 1999. The Directorate has sent a letter requesting for issue of orders/mooting amendments in the Act on the following point....
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....puty Commissioners/Joint Commissioners of Customs and Central Excise to exercise the powers of adjudication against whose orders appeal would lie to the Special Director (Appeals). The E.D. has mentioned that till Section 17 of FEMA is suitably amended, the difficulty may be removed by an order to be issued under Section 45 of FEMA. Section 45 (1) is reproduced below ;- If any difficulty arises in giving effect to the. provisions of this Act, the Central ; Government may, by order, do anything not inconsistent with the provisions of this Act for the purpose of removing the difficulty. 4. Section 16(3) of FEMA, which is reproduced below, stipulates that - No Adjudicating Authority shall hold an enquiry under subsection (1) except upon a complaint in writing made by any officer authorised by a general or special order by the Central Government. 5. Accordingly, the Directorate has proposed to authorise Assistant Directors of Enforcement to file complaints before the Adjudicating Authorities. Identical order is also required to be issued in respect of officers of the Customs and Central Excise/DRI. 6. The file was shown to the Chairman, CBEC....
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....nd penalties set aside. 18. Learned Authorized Representative narrated the facts and the focus of investigation which was the foundation on which the adjudicating authority held the several episodes of transfer of 'foreign currency' outside the country in a manner contrary to the intent of the law. Besides hearkening for us the relevant provisions of Foreign Exchange Management Act, 1999, attention was drawn to Foreign Exchange Management (Export and Import of Currency) Regulations, 2000 and regulation 3 of Foreign Exchange Management (Possession and Retention of Foreign Currency) Regulations, 2015 as well as the master circular that were relied upon by the lower authorities. In particular, we were urged to uphold the order for carriage of more than US$ 3000 in cash by Shri Amit Bali and for misuse of 'travel cards' by Shri Amit Bali. Reliance was placed on the decision in Fayaz Gulam Godil v. Commissioner of Customs (CSI Airport), Mumbai [2015 (2) TMI 176 -CESTAT MUMBAI]. We have considered the impugned order in detail and draw upon the referred portions at the relevant places. 19. Learned Senior Counsel has alluded to the conformity of the drawals with extant instructions a....
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....ransactions. 21. For a start, 'currency', for purposes of Customs Act, 1962, is goods but the context of its inclusion in the definition of 'goods' is mystifying for, unlike the other 'deemed goods', 'currency' is neither defined nor accorded special provisioning in Customs Act, 1962. There is no deployment of the expression anywhere in Customs Act, 1962 except for 'foreign currency' in section 14 therein where it is anything but goods. More particularly, 'currency' was never the target of prohibitory notification under section 11 of Customs Act, 1962. Indeed, there is no scope for appreciation of its significance here from Sea Customs Act, 1878 either which did not even venture to define 'goods' - an expression liberally strewed in several of the provisions therein - the 'core' of customs charter until incorporation of section 195B therein by amending legislation [The Sea Customs (Amendment) Act, 1958 (39 of 19580] Section 19 of Sea Customs Act, 1878 too did not find recourse to for prohibiting 'currency' before 1963. Nonetheless, about four decades ago, a fledgling Tribunal, called upon in Meghraj Gordhandas Gehi and Mani v. Collector of Customs [1984 (18) ELT 375 (Tri-Mumbai)....
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....ceedings for contravention of the aforesaid Sections then all other provisions of the Customs Act becomes applicable for the with the contraventions. In the said circumstances, the contention... that the action taken under the Customs Act in the absence of notification under Section 11 of the Customs Act is illegal has no force.' the scope and extent of empowerment was made abundantly unambiguous; in the absence of prohibition on 'foreign currency' transactions by section 11 of Customs Act, 1962, authority to determine violation of Foreign Exchange Regulation Act, 1973 - in cross-border movement of 'currency' (and, bullion then) without permission of Reserve Bank of India (RBI), in export of goods without furnishing 'full export value of goods' and in taking or sending 'security' to any place outside India without permission of Reserve Bank of India (RBI) - stems solely from specific deeming of applicability of Customs Act, 1962, section 11 and everything besides, by conferment of sweeping powers in '67. Application of the Customs Act, 1962 - The restrictions imposed by or under section 13, clause (a) of sub-section (1) of section 18, section 18A and clause (a) of sub-s....
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....te by reference the provisions of the Sea Customs Act by deeming the restrictions under section 8 of the Foreign Exchange Regulation Act to be prohibitions and restrictions under section 19 of the Sea Customs Act. The contention is that since section 19 restricts the bringing or taking by sea or by land goods of any specified description into or out of India, these restrictions are not applicable to the bringing in or taking out the currency notes which are not goods within the meaning of that section, and, therefore, the appellant is not guilty of any contravention of section 19 of the Sea Customs Act and cannot be subjected to the penal provisions of the said Act. This argument, in our view, is misconceived, because firstly, it is a well accepted Legislative practice to incorporate by reference, if the Legislature so chooses, the provisions of some other Act in so far as they are relevant for the purposes of and in furtherance of the scheme and objects of that Act and secondly, that merely because the restrictions specified in section 8 of the Foreign Exchange Regulation Act are deemed to be prohibitions and restrictions under section 19 of the Sea Customs Act, those prohibitions....
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....ntext of the template that we draw upon the decisions of the Hon'ble Supreme Court supra. 24. Sea Customs Act, 1878 did not provide a definition of 'goods' even though 'currency', along with 'goods', were deployed therein. Customs Act, 1962 did not provide a definition of 'currency', though included in the new infusion of definition for 'goods', even as that expression was not considered necessary for inclusion as warranting special treatment. The lower authorities made free to draw upon definition in Foreign Exchange Management Act (FEMA), 1999 without being afforded such contingency specified in section 2 itself of Customs Act, 1962. That they were compelled to is more than loud whisper of the lack in Customs Act, 1962 and that they did so tellingly demonstrates regression to a past that no longer was reality. Ensconcing of 'currency' in 'goods' in Customs Act, 1962 has as much, or as little significance, as the lack of definition of 'goods' and, thereby, of acknowledgement of 'currency' in Sea Customs Act, 1878. We may, therefore, enunciate that the 'free floating and apparently aimless' inclusion of 'currency' was intended merely to afford parity with 'goods' insofar as proc....
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....ing empowerment under Sea Customs Act, 1878 and, probably, considering the extended life of that law till December 1957 for adjudication of offences. Sea Customs Act, 1878 was amended on several occasions thereafter and, when concerning procedure, incorporated 'currency' whenever warranted. Thus, it was under Customs Act, 1962 that adjudication for breach of violations under Foreign Exchange Regulation Act (FERA), 1947 had its formative growth, even as prosecution under that statute was taken up by both Collectors of Customs and Reserve Bank of India in their respective domains, from 1952. A beginning was also made to enable formal enquiry by summoning of information, record and books in amendment to section 19 therein. 27. The next major tectonic shift was the vesting of powers in the newly established Director of Enforcement to adjudicate, as well as to launch prosecution, for contraventions of, and offences under, Foreign Exchange Regulation Act (FERA), 1947, the constitution of Appellate Board under section 23E [section 17 of FERA (Amendment) Act, 1957 (39 of 57)] of Foreign Exchange Regulation Act (FERA), 1947, conferment of powers to search and inspect by insertion of sect....
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....tute warranted so and, hence, the natural corollary of altered circumstances having rendered that inclusion to be redundant is cause for pause. As 'currency' finds definition only in statutes regulating 'foreign exchange', it is in that direction that our minds must traverse. By renumbering the existing section 19A and 19B and with further incorporation [section 15 of FERA (Amendment) Act, 1964 (55 of 1964)] of those, and alongside, 19A to section 19J, the proposed Enforcement Directorate acquired teeth. Taking note of enactment of Customs Act, 1962 and repeal of Sea Customs Act, 1878, the erstwhile arrangement for deeming prohibition [section 18 of FERA (Amendment) Act, 1964 (55 of 1964)] of certain 'foreign exchange transactions' save for compliance with conditions prescribed was continued by suitable substitutions in section 23A of Foreign Exchange Regulation Act, 1947. The Appellate Board was subordinated to jurisdictional High Court by incorporating section 23EE [section 20 of FERA (Amendment) Act, 1964 (55 of 1964)] in Foreign Exchange Regulation Act (FERA), 1947. 31. As far as the dual jurisdiction of customs officers and enforcement officials are concerned, it is the thu....
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....rosecution and, that too, by Reserve Bank of India (RBI), customs officials were harnessed for, in relation to specific prohibitions, through amending act of 1952 for adjudication under the aegis of Sea Customs Act, 1878, tertiary empowerment through deemed prohibition prompted by lack of official machinery in Foreign Exchange Regulation Act (FERA), 1947. It was only with the empowerment of Director of Enforcement by, and upon statutory acknowledgement in, the amending act of 1957 that the Reserve Bank of India (RBI) was manumitted of its agency function but, considering the infancy, it was not in public interest to withdraw the authority entrusted in customs officials. The elevation of that nascent agency into the structured Enforcement Directorate and the sweeping upgradation of enforcing powers vested in the new structure by the amending act of 1965 was also legislatively intended to continue the dual machinery by ensconcing deeming prohibition through section 11 of Customs Act, 1962. The newly minted Foreign Exchange Regulation Act (FERA), 1973 saw no displacement of the dual machinery which is attributable to legislative intent. 33. It is common ground that the substituting....
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....adjudicate or prosecute, is inevitable conclusion. 34. While the dual machinery of oversight under the erstwhile statutes may have had its origins in the lack of exclusive agency, as in Enforcement Directorate, and retained, thereafter, by continuation of the deeming provision, as provisioning for added support while the new agency stabilised, the benefit of such arrangement especially at the frontiers and points of order control may not be minimised. The correspondence initiated within the Central Government, recorded supra, amply evidences that evaluation; that such restoration, albeit without resort to the deeming provision, was contemplated is also evidence of deliberate contemplation and intended exclusion of those functions, except under the sole and exclusive empowerment in Foreign Exchange Management Act (FEMA), 1999; thus any action to confiscate and initiate prosecutions are required to be consistent with the foreign exchange regulating statute. Indeed, there is no cause for discriminatory treatment as would, inevitably, occur should recourse be had to customs law permitting redemption on payment of fine and penalty as multiples of amounts involved with corresponding c....
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....hat discretion empowered by section 125 of Customs Act, 1962 had not been exercised properly. With acceptance of coverage of the impugned activity by Customs Act, 1962, the Tribunal, perforce, was not required to test the established facts within the frame of Customs Act, 1962. The Tribunal rendered its considered findings only on the exercise of discretion to confiscate absolutely. That nature of confiscatory consequence is irrelevant in circumstances of jeopardized exercise of confiscation. The cited decision is no precedent for affirmation of authority under Customs Act, 1962. 38. That the adjudicating, and first appellate authority, have chosen to revive a rescinded authority under a repealed law cannot be validated as emanating from an alternative statutory authorization from mere narration of facts as would suffice for 'goods', in its pristine sense and excluding 'currency', over which the border control agency has its remit. There is no competence under Customs Act, 1962 to consider any of the instructions, circulars or orders of the Reserve Bank of India for ascertainment of compliance thereto by the travelling public. That lack of competence extends throughout the sever....