Page 227 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] IN RE : MANOJ KUMAR SHARMA 761

Provided further that it shall not be necessary to make such declaration
where the aggregate value of the foreign exchange in the form of currency
notes, bank notes or traveller’s cheques brought in by such person at any
one time does not exceed US$10,000 ( US Dollars ten thousand) or its
equivalent and/or the aggregate value of foreign currency notes brought in
by such person at any one time does not exceed US$ 5,000 ( US Dollars five
thousand) or its equivalent.”
It is observed that the PAX did not make the statutory declaration on his arrival
to the customs authorities since the Forex (UAE Dirham 1,05,410) carried by him
was much higher than the prescribed limit under the FEMA, 1999 read with For-
eign Exchange Management (Export and Import of Currency) Regulations, 2000.
16. The legal provisions of FEMA, 1999, the Foreign Exchange Man-
agement (Export and Import of Currency) Regulations, 2000, Section 2(33) of the
Customs Act, 1962 read with Section 11 clearly stipulate that an attempt to
smuggle foreign currency and Indian currency is ‘prohibited’ and merits confis-
cation under provisions of Customs Act, 1962.
In the case of Ram Kumar v. Commissioner of Customs [2015 (320) E.L.T.
368 (Del.)] Hon’ble High Court of Delhi while dismissing the writ petition of the
petitioner disallowed release of confiscated forex to be redeemed under Section
125 of Customs Act, 1962. The ratio of judgment squarely applies to the present
case.
Therefore the impugned Indian and foreign currency seized from the
PAX in violation of the provisions of FEMA, 1999, Foreign Exchange Manage-
ment (Export and Import of Currency) Regulations, 2000 read with Sections 2(33)
and 11 of Customs Act, 1962 falling into the category of ‘prohibited goods’ has
been correctly confiscated under Section 111(d), (m) & (o) of Customs Act, 1962
by the adjudicating authority which has been upheld by the impugned order-in-
appeal.
17. The customs authorities in the Revision Application have requested
for setting aside order-in-appeal on grounds of reduction in penalty under Sec-
tion 112 of Customs Act, 1962 from Rs. 30 lacs (Rupees Thirty lacs) to Rs. 5 lacs
(Rupees Five Lacs).
Reliance is placed on the judgment of Hon’ble Bombay High Court in the
case of Rajendra G. Bhutada v. Union of India [2017 (358) E.L.T. 140 (Bom.)] where-
in it has been held as follows :-
“Currency brought illegally, finding of fact - Thus, being responsible for
bringing in currency and consequent confiscation thereof, accused must
suffer penalty.”
Keeping in view the gravity of the offence the order of Commissioner (Appeals)
in reducing the penalty from Rs. 30 lacs (Rupees Thirty Lacs) to Rs. 5 lacs (Ru-
pees Five lacs) is erroneous and is set aside.
The customs authorities in the Revision Application have also requested
for setting aside order-in-appeal regarding waiving of penalty of Rs. 10 lacs (Ru-
pees Ten Lacs) under Section 114AA of Customs Act, 1962.
Section 114AA of the Customs Act, 1962 reads as follows :

EXCISE LAW TIMES  1st June 2020  227