T.P. Nambiar, Member (J) -
(1.) THE above captioned appeals are filed by the appellants against the order of the Collector of Customs (Preventive), West Bengal, Calcutta, vide order No. 13/Cus/WB/1985 dated 4-11-1985. In terms of that order, he confiscated Bangladesh Taka 400 seized from the appellant Kiran Chandra Sarkar and also confiscated the Indian currency amounting to Rs. 40,000/- found in the possession of appellant Sarkar. He also confiscated a sum of Rs. 45,000/- which was found in possession of the other appellant Provash Chandra Dey. A personal penalty of Rs. 1,000/- each was also imposed on both the appellants.
(2.) The brief facts of the case are that acting on an information the Officers of the Customs P&PD Units, West Bengal, Calcutta searched the shop premises belonging to one Babul Banik at 5, Baithak Khana 1st Lane, Calcutta-9 on 27-11-1984 in pursuance of a search warrant dated 26-11-1984 bearing No. 109/84 issued by the Assistant Collector of Customs (Preventive). On searching the premises, a total amount of Bangladesh Taka to the extent of 1,80,750 BDT and Indian currency of Rs. 91,950/- were recovered. Out of these Bangladesh Takas, 400 Bangladesh Taka were recovered from the pocket of Kiran Chandra Sarkar and Indian currency of Rs. 40,000/- was also seized from his possession. Indian currency of Rs. 45,000/- was also seized from Provash Chandra Dey. The statements of Babul Banik and both the appellants were recorded under Section 110 of the Customs Act, 1962 (hereinafter, to be referred to as 'the Act', for short) and thereafter show cause notices were issued to the appellants requiring them to show cause as to why the Bangladesh Taka and the Indian Currency should not be confiscated as they were illegally imported into the country in violation of Section 13(1) of Foreign Exchange Regulation Act, 1973 (hereinafter, to be referred to a TERA' for short) and in contravention of Section 3(1) of Import/Export (Control) Act, 1947, read with Section 11 of the Customs Act rendering them liable to confiscation under Section lll(d) and 121 of the Act. It was also stated therein why the appellants should not be penalised under Section 112 of the Act. The appellants filed replies and after adjudication the impugned order was passed.
Shri A.K. Roy Choudhury, learned Advocate appeared before us for both the appellants, and Shri B.B. Sarkar, learned Departmental Representative appeared for the respondents.
(3.) SHRI Roy Choudhury contended that there is absolutely no evidence to show that the amount of Rs., 40,000/-, which was found in the possession of Kiran Chandra Sarkar was obtained by him by selling Bangladesh Taka. In this connection, he pointed out that if actually the appellant had sold Bangladesh Taka to Babul Banik, there was no necessity for him to keep 400 Bangladesh Takas with him. It was contended that in the ordinary course of events he would have given the full Bangladesh Taka to Babul Banik. It was, therefore, contended that his presumption of the learned adjudicating authority is not warranted in the circumstances of this case. He also contended that the appellant had given a statement before the Officers to the effect that he had gone to the shop of Babul Banik with this amount for purchasing utensils. Therefore, it was his contention that there is no evidence to show that this amount represented the sale proceeds of Bangladesh Taka, as was contended by the department. It was also contended that as far as the appellant Provash Chandra Dey is concerned, the only circumstance against him is that he had failed to declare the source of this amount of Rs. 45,000/-. It was his contention that merely because a person has failed to declare the amount found from him, it cannot be presumed that the same is sale proceeds of smuggled goods. It was, therefore, contended that there was no case made out by the department for confiscating the amount in question. He also contended that there is a difference between Section lll(d) of the Customs Act and Section 13(1) of F.E.R.A. SHRI Roy Choudhury contended that under Section lll(d) of the Act, the offending goods are liable for confiscation. He pointed out that in terms of Notification No. FERA/9/74-RB dated 1st January, 1974, a person can bring any amount of foreign currency in Indian soil and there is no restriction in bringing the foreign currency. It was also pointed out that it is only when the foreign currency exceeds one thousand dollars, the same is required to be declared before the authorities. He also pointed out that the only restriction is that this foreign currency could not be sold by a person to any other person and it can only be encashed through authorised dealers of foreign exchange. It was, therefore, pointed out that there is absolutely no case made out by the department for penalising the appellants under Section 112 of the Act and there is also no case made out by them to show that the Indian currency found from them was the sale proceeds of foreign currency, i.e. Bangladesh Taka. He also pointed out that with respect to 400 Bangladesh Taka found in the possession of Kiran Chandra Sarkar, no offence is made out. He, therefore, stated that the appeals may be allowed.;