Decided on April 23,1991



T.P.Nambiar, - (1.) THIS is an appeal filed by the appellant against the orders passed by the learned Additional Collector in Order No. ASA-2207/90-AIU dated 5-1-1991. In terms of that order the learned Additional Collector confiscated the undeclared foreign currency (Deutsche Mark 1,400, one video camera, one Casio LCD colour T. V. and video casettes 9 pcs. The learned Addl. Collector allowed the appellant to redeem the same on payment of fine of Rs. 30,000/-. He also allowed the appellant to exchange the foreign currency in the State Bank of India in the Airport itself.
(2.) The learned Advocate, Sri Bhowmik appeared for the appellant and Sri B. B. Sarkar appeared for the department. As I proceed to dispose of the appeal, the stay as prayed for, is granted. The learned Advocate Sri Bhowmik contended that the passenger Sri Ajay Kumar Paik holding Indian passport arrived at Calcutta Airport from Amsterdam on 24-12-1990. It was his contention that the passenger wanted to declare the goods and there was no mala fide intention and in the circumstances of the case, the goods may be allowed to be re-exported. He also contended that the appellant made a statement on 27-12-1990, which is found at page 18 of the paper book. Sri Bhowmik also contended that by virtue of Section 67 of the Foreign Exchange Regulation Act, 1973, the Customs Act is applicable to the facts of the case. He also brought to my notice that, merely because the goods are liable to be confiscated there is no law to confiscate the same if the action of the appellants are bona fide. In this connection he relied on the decision reported in 1989 (39) ELT 454 Ingersoll Rand (India) Ltd. v. Collector of Customs. Sri Bhowmik contended that the declaration of 1,400 foreign currency was not required. In this regard he brought to my notice the Import and Export of Indian currency/foreign exchange as per the Notification of the Reserve Bank of India, Fera 9/74/RB dated 1st January, 1974. Sri Bhowmik pointed out the last proviso to this Notification wherein it is stated as follows: "Provided further, that it shall not be necessary to make such declaration where the aggregate value of the foreign exchange brought in by such person in the form of currency notes, bank notes or travellers' cheques at any one time does not exceed US $ 1,000 or that equal. Sri Bhowmik therefore contended that the declaration of 1,400 foreign currency was not required.
(3.) SRI B. B. Sarkar, learned JDR, contended that the passenger was proceeding towards the exit gate. He was stopped and he was asked to make a declaration. He did not make the declaration about the LCD colour T.V. and the currency 1,400 (Deutsche mark) and he also did not make a declaration of the Video camera with four accessories and the video cassettes which are 9 pcs. in number. He, therefore, contended that all these goods are not bonafide taken by the passenger and the confiscation order is correct. He also relied on the decision of the Tribunal reported in 1983 (14) ELT 1938 -Shri Purgan Singh v. Collector of Customs & Central Excise, and contended that travel declaration and a request for detention for re-export is necessary by the party concerned or else the confiscation of the passenger's baggage is valid. In that case the appellant went to the Customs and declared his goods and paid the duty on some of the items under the Baggage Rules. Then a request for detention was made and the re-export was allowed in respect of one Gold Kara. The Tribunal held that under Section 80 of the Customs Act, the request made by the appellant to detain the goods for subsequent reexport shows the bonafide intention and that it was not with any intention to import the same illegally. He, therefore, contended that no grounds are made out to interfere with the orders in question.;

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