HO SEONG PARK Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) Both the above captioned appeals have been directed against the common impugned order -in -original vide which confiscation of the Indian currency, foreign currency, Nepalese goods and one car have been ordered besides imposition of personal penalties on both the appellants, as detailed therein.

(2.) I have heard both sides and gone through the record. The facts are not much in dispute. The appellant No. 1 is a Swiss national. He happened to visit India in 17th May, 2003. He was intercepted while travelling in a car bearing No. UP65 -H -8448 on Sonauli -Gorakhpur highway near Sampatia. On conducting his search Swiss Francs 36,415/ - and US 44 were recovered. Indian currency of Rs. 1,27,900/ -, Nepalese goods and one idol of Lord Ganesh were also recovered which were seized and the adjudicating authority has ordered the same to be confiscated. The authority has allowed the redemption of some of the currencies on payment of redemption fine and imposed personal penalty of Rs. 1 lakh on appellant No. 1 and Rs. 10,000/ - on appellant No. 2, being the owner of the car which was being used as Taxi. The taxi has also been ordered to be confiscated with an option to get it redeemed on payment of redemption fine of Rs. 45,000/ -. For redemption of the foreign currency, detailed above, the redemption fine of Rs. 2 lakh has been fixed by adjudicating authority. The learned Counsel has contended that this amount is too exorbitant and deserves to be substantially reduced, whereas the learned JDR has contended that it should be maintained. But, in my view, the contention of the learned counsel deserves to be accepted. This foreign currency was recovered from the appellants No. 1, who is a Swiss national and who was on a sight seeing visit to India. There is nothing on the record to suggest that he was making an attempt to indulge in the illegal transfer of this currency to any other person in India or that he was a regular visitor to India and indulged in Hawala. He even made declaration regarding the possession of the foreign currency with him, though it was not of the full amount. There is also nothing on the record to suggest that this currency was illegally procured by him within India or from Nepal and had intentions to pass on the same to another person for Consideration. Therefore, keeping in view the facts and circumstances of the case, the redemption fine which is too exorbitant, is reduced to Rs. 20,000/ -

(3.) Regarding the absolute confiscation of the Indian currency of Rs. 1,00,000/ - out of the total recovered currency of Rs. 1,27,900/ - from the possession of the appellant No. 1, on the ground that it was in the denomination of Rs. 1,000/ -, the learned Counsel has contended that being a foreign national, the appellant No. 1, did not know the exact rules and regulations for possessing/carrying the same in India. The learned Counsel has also referred to the Foreign Exchange Management (Export and Import of Currency) Regulations, 2000 under which taking to or bringing from, Nepal the Indian currency by a foreign national i.e. notes of the denomination of above Rs. 100/ - is not absolutely prohibited, rather can be carried with permission. Therefore, lapse committed by him was that he did not take the permission from the competent authority and for this lapse, absolute confiscation of the Indian currency could not be made. He should have been burdened with the fine only, as has been done by the adjudicating authority in respect of the balance Indian currency for the redemption of which fine of Rs. 5,000/ - had been imposed. Therefore, the impugned order in respect of the absolute confiscation of the Indian currency of Rs. 1,00,000/ -, cannot be sustained and is modified. The appellant No. 1 is allowed to get the release of this amount, also on payment of redemption fine of Rs. 10,000/ -.