Joseph Sebastian Prekash, Thiruvananthapuram Vs. Commissioner of Central Excise, Customs and Service Tax, Kerala - Court Judgment

SooperKanoon Citationsooperkanoon.com/1149304
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT
Decided OnApr-28-2014
Case NumberFinal Order No.20626 of 2014 C/174 of 2006-DB [Arising Out of Order-in-Appeal No.2 of 2006-Cus. dated 31/01/2006 passed by the Commissioner of Central Excise and Customs (Appeals), Thiruvananthapuram.]
JudgeTHE HONOURABLE MR. B.S.V. MURTHY, TECHNICAL MEMBER & THE HONOURABLE MR. S.K. MOHANTY, JUDICIAL MEMBER
AppellantJoseph Sebastian Prekash, Thiruvananthapuram
RespondentCommissioner of Central Excise, Customs and Service Tax, Kerala
Excerpt:
b.s.v. murthy, j. 1. when the appellant was on his way to dubai via thiruvananthapuram international airport on 19.8.2003, a search was conducted which resulted in seizure of foreign currency consisting of us dollar,  british pound, euro, u.a.e dirhams, totally valued at rs.10,93,470.20 as per the prevailing exchange rate. the appellant had not declared the same and admitted the fact. thereafter proceedings were initiated which has culminated in absolute confiscation of the currency since the same was not declared, was in excess of the limit imposed by the rbi for export of foreign exchange from india by passengers travelling abroad. an appeal was filed by the appellant and the commissioner (a) upheld the confiscation of the currency and enhanced the penalty from rs.25, 000/- to rs.50, 000/-. 2. the matter has been coming up frequently before this tribunal for hearing. the appellant had submitted the written submissions in july 2011 and again submitted the same on 21.5.2012 with a request that matter may be decided by accepting the memorandum of arguments submitted by him on 8.7.2011. the written argument submitted by the appellant mainly consists of the following submissions: (a). the original adjudicating authority had taken another case booked against him into consideration which was not correct and against the principles laid down by the cegat reported in the case of ranjit ghosh alia rana ghosh: 1998 (104) e.l.t. 349 (t). (b). the second submission is that absolute confiscation of currency is not proper in the absence of mala fide. (c). he also relied upon a decision of the tribunal wherein it was held that a passenger is not required under law to make a declaration about the possession of such currency. it is his submission that any objection could have been raised only when the amount is above the limit prescribed by the rbi and therefore the foreign currency to the extent of us $ 25,000 released to him and only balance could have been confiscated. 3. we have considered the submissions made by both the sides. as regards the decisions of the tribunal submitted and relied upon by the appellant, we find that in one case viz., 2005 (192) e.l.t. 263, the appellant therein had indicated the purpose of carrying the currency and had given specific details as to why he needed the same. in this case, no such details are coming forth. in the second case, the currency was released by reducing the redemption fine imposed but the total amount was within the limit prescribed. therefore both the decisions relied upon by the appellant are not applicable to the facts of this case. since none of the decisions cited by the appellant are applicable to the facts of this case, we uphold the impugned order as regards confiscation since there is no dispute that the currency was not declared, so concealed in the baggage and could not have been detected but for the information received by the customs authorities. as regards penalty, we find that the enhancement of penalty by the learned commissioner was not called for since only the appellant was in appeal before the commissioner and revenue was not in appeal and therefore the enhancement of penalty from rs.25,000/- to rs.50,000/- is set aside and penalty is reduced to rs.25,000/- only.
Judgment:

B.S.V. Murthy, J.

1. When the appellant was on his way to Dubai via Thiruvananthapuram International Airport on 19.8.2003, a search was conducted which resulted in seizure of foreign currency consisting of US Dollar,  British Pound, Euro, U.A.E Dirhams, totally valued at Rs.10,93,470.20 as per the prevailing exchange rate. The appellant had not declared the same and admitted the fact. Thereafter proceedings were initiated which has culminated in absolute confiscation of the currency since the same was not declared, was in excess of the limit imposed by the RBI for export of foreign exchange from India by passengers travelling abroad. An appeal was filed by the appellant and the Commissioner (A) upheld the confiscation of the currency and enhanced the penalty from Rs.25, 000/- to Rs.50, 000/-.

2. The matter has been coming up frequently before this Tribunal for hearing. The appellant had submitted the written submissions in July 2011 and again submitted the same on 21.5.2012 with a request that matter may be decided by accepting the memorandum of arguments submitted by him on 8.7.2011. The written argument submitted by the appellant mainly consists of the following submissions:

(a). The original adjudicating authority had taken another case booked against him into consideration which was not correct and against the principles laid down by the CEGAT reported in the case of Ranjit Ghosh Alia Rana Ghosh: 1998 (104) E.L.T. 349 (T).

(b). The second submission is that absolute confiscation of currency is not proper in the absence of mala fide.

(c). He also relied upon a decision of the Tribunal wherein it was held that a passenger is not required under law to make a declaration about the possession of such currency. It is his submission that any objection could have been raised only when the amount is above the limit prescribed by the RBI and therefore the foreign currency to the extent of US $ 25,000 released to him and only balance could have been confiscated.

3. We have considered the submissions made by both the sides. As regards the decisions of the Tribunal submitted and relied upon by the appellant, we find that in one case viz., 2005 (192) E.L.T. 263, the appellant therein had indicated the purpose of carrying the currency and had given specific details as to why he needed the same. In this case, no such details are coming forth. In the second case, the currency was released by reducing the redemption fine imposed but the total amount was within the limit prescribed. Therefore both the decisions relied upon by the appellant are not applicable to the facts of this case. Since none of the decisions cited by the appellant are applicable to the facts of this case, we uphold the impugned order as regards confiscation since there is no dispute that the currency was not declared, so concealed in the baggage and could not have been detected but for the information received by the customs authorities. As regards penalty, we find that the enhancement of penalty by the learned Commissioner was not called for since only the appellant was in appeal before the Commissioner and Revenue was not in appeal and therefore the enhancement of penalty from Rs.25,000/- to Rs.50,000/- is set aside and penalty is reduced to Rs.25,000/- only.