By TIOL News Service

MUMBAI, FEB 03, 2016: THE appellant was caught trying to export Indian currency and foreign currency at the Airport. The appellant claimed that the said currency belonged to one Sabir and was to be handed over to one Hazi Shaikh in Dubai. The said statement was later retracted and the appellant claimed that the money belonged to him. In his retraction he claimed that he was forced to admit that currency did not belong to him and the said currency was given to him by Sabir to be delivered to Hazi Shaikh. In his retraction, he claimed that he has informed the officer that the said money was his hard earned money during his trip to Dubai during the year 2004. Later on, in his statement recorded on 31.1.2005, he again changed his stand and stated that he had never said or indicated that the currency found was his own and he had added that the said statements given by him during the period of his attendance in the AIU office was given voluntarily without any use of force and threat.

Be that as it may, the Commissioner of Customs, CSI Airport, by an order dated 24.8.2006 ordered absolute confiscation of the seized currency. A penalty of Rs. 2 lakhs was imposed on the appellant u/s 114(i) of the Customs Act, 1962. The proceedings against Sabir and Hazi Shaikh were kept in abeyance till their statements are recorded and further investigations are carried out.

Before the CESTAT, the appellant submitted that in similar circumstances in case of Peringatil Hamza Vs. Commissioner of Customs (Airport), Mumbai, the Larger Bench vide its order dated 23.6.2014 - 2014-TIOL-1156-CESTAT-MUM-LB has held as follows: -

"In case a person attempted to export Indian currency outside India without permission of RBI more than Rs.5,000/- or Rs.10,000/- (as the case may be) in that case the Indian currency can be absolutely confiscated and it is discretion of the proper officer in the facts and circumstances of the case be allowed to redeem on payment of redemption fine and imposition of penalty."

Adverting to the Bombay High Court decision in Dhanak M Ramji, it is submitted that it is immaterial as to who is the owner of the goods; appellant is entitled to claim the same against payment of redemption fine; that Supreme Court had dismissed the petition filed by the Revenue.

The AR submitted that in view of the Delhi High Court decision in Ram Kumar Vs. Commissioner of Customs absolute confiscation needs to be upheld.

The Bench observed that the Larger Bench had settled the issue inasmuch as the Larger Bench had given full discretion to the proper officer to allow redemption of the seized Indian currency on payment of redemption fine and imposition of penalty.

It was also observed that the citations given by both sides were of no avail as the facts involved were substantially different.

The CESTAT, thereafter, added -

"…In the instant case, it is noticed that the appellant has changed its stand regarding ownership of currency repeatedly. In his last statement dated 31.1.2005, he has not claimed ownership of the currency. It is seen from the impugned order that the appellant is a repeat offender and two cases have already been booked against the him, which are mentioned in para 114 of the impugned order. Further, it is noticed that the appellant had not challenged the confiscation per se. Further it is seen from the adjudication order that the proceedings in respect of Shri Sabir, who had apparently given this cash to the appellant and Shri Hazi Shaikh, who was supposed to receive the money in Dubai are still in abeyance."

Noting the above facts, the Bench opined that it would be improper to allow redemption of seized currency.

Holding that the penalty imposed on the appellant is adequate, the appeal was dismissed.

(See 2016-TIOL-324-CESTAT-MUM)