Page 239 - ELT_15th August 2020_Vol 373_Part 4

2020 ] IN RE : VIRENDER VERMA 573

“goods” includes -
(a) vessels, aircrafts and vehicles;
(b) stores;
(c) baggage;
(d) currency and negotiable instruments; and
(e) any other kind of movable property.
Rule 7 of the Baggage Rules, 2016 stipulates as under :
“Currency. - The import and export of currency under these rules
shall be governed in accordance with the provisions of the Foreign
Exchange Management (Export and Import of Currency) Regula-
tions, 2015, and the notifications issued thereunder.”
Section 11(2)(c) read with 11(2)(e) of Customs Act, 1962 prohibits import or ex-
port of goods for the purpose of prevention of smuggling or for conservation of
foreign exchange and safeguarding balance of payments.
From the evidence on record it is evident that a huge amount of foreign
currency was recovered from the respondent, i.e., Tushar Kumar, on 3-7-2014
which was wrapped in black carbon paper concealed in inner lining of bag on the
side walls. It is also not disputed by him that he did not declare the impugned
currency to Customs officers at the airport and he did not have any documents
or evidence showing lawful possession of the impugned currency. The currency
so concealed by him was deliberately not declared to the proper officer of the
Customs under Section 77 of the Customs Act, 1962.
7. Regulation 5 of the Foreign Exchange Management (Export and Im-
port of Currency) Regulations, 2000, states that no foreign currency can be send out
of India or brought into the country without the permission of the Reserve Bank of India.
As per Regulation 3(1) and Regulation 5 of Foreign Exchange Management (Ex-
port and Import of Currency) Regulations, 2000, read with Foreign Exchange
Management (Possession and Retention of Foreign Currency) Regulations, 2000,
at the material time reads as follows :-
“any person may take out of India foreign currency notes, bank notes and
foreign currency travellers cheques not exceeding US$2000 or its equivalent
in aggregate.”
The legal provisions of FEMA, 1999, the Foreign Exchange Management (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 out of India which has not been procured from authorized sources is
‘prohibited’. Therefore the impugned foreign currency seized from the respond-
ent Shri Tushar Kumar concealed and attempted to be illegally exported in viola-
tion of the provisions of FEMA, 1999, read with Foreign Exchange Management
(Export and Import of Currency) Regulations, 2000 and Section 11 of Customs
Act, 1962 will fall in the category of ‘prohibited goods’ and is liable for absolute
confiscation under Sections 113(d), (e), (h) & (i) of Customs Act, 1962.
Hon’ble Madras High Court in the case of Commissioner of Customs (AIR)
Chennai-I v. Samynathan Murugesan [2009 (247) E.L.T. 21 (Mad.)] relying on the
definition of ‘prohibited goods’ given by the Apex Court in case of Omprakash
Bhatia v. Commissioner of Customs, Delhi [2003 (155) E.L.T. 423 (S.C.)] has held as
under :-
- EXCISE LAW TIMES  15th August 2020  239