[In re: Kanwaljit Singh Bala 2012 (275) ELT 272 (GOI)]
Brief facts of the case are that the appellant was leaving for London on 11-2-2009 from Kolkata Airport. After completing immigration formalities while the appellant was proceeding towards the security area, one of the AIU officers intercepted him. On being asked the appellant declared of having 1500 Euro and IC Rs.5200. Not being satisfied, the person was searched which resulted in the recovery of 5200 Euro, 1000 UK Pounds, and 98 US$, collectively valued at Rs.3,73,609, kept concealed inside the brief worn by him. The appellant could not produce any licit document in support of his legal acquisition, possession and/or exportation of the said currency. Accordingly, the said currency was seized on the reasonable belief that the same was being smuggled out of the country in contravention of the provisions of the Customs Act, 1962 read with FEMA, 1999 rendering the same liable to confiscation under the relevant provisions of the Customs Act, 1962.
The said seized currency was confiscated u/s. 113(d)(1) of the Customs Act, 1962 with an option to redeem the same on payment of redemption fine of Rs.1,50,000. A penalty of Rs.75,000 was also imposed. The applicant preferred an appeal before the jurisdictional Commissioner of Customs (Appeals) who upheld the action taken by the lower authorities but reduced the redemption fine to Rs.1 lakh and penalty to Rs.50,000 only.
The appellant submitted that the foreign currency carried by him was a part of the foreign currency drawn from M/s. Clarity Financial Service Ltd. (RBI authorised money exchange), Kolkata. Due to sudden return to India, the appellant again converted the Malaysian currency into Euro & UK Pound at airport for utilising the same for subsequent visit to UK. In a hurry no money exchange receipt was obtained.
The Revisionary Authority observed that that as per Foreign Exchange Management (Import and Export of Currency) Regulations 2000, Indian National can bring any amount of foreign currency and declaration before the customs is required only if the money value exceeds US $ 5000. The money value of the unspent amount is equivalent to US $ 8500 (approx.) and non-declaration of the same has been due to impression that no declaration is required for unspent money (procured legally in India) on return.
On perusal of Regulations 5, 6 and 7 (with relevant RBI Notifications) as above, it is evident that a compulsory requirement of making a Custom Declaration Form (CDF) is the legal requirement specifically when the impugned foreign currency involved is more than US $ 5000 (or equivalent). In this case the applicant has not made any declaration in CDF. Therefore, any of the plea as made herein that impugned foreign currency is a part of his legally acquired money which was 1st taken out and then brought in after his visit abroad cannot be ‘Independently verified’. Only a proper CDF could be the connecting legal document which is very much missing in this case. In the absence of such a vital link the entire theory/submissions appears to be an after thought and excuse. Therefore taking into account a settled principle of law that ignorance of law is no excuse, the Govt. is of the opinion that the applicant(pax) had not declared the impugned foreign currency to the customs officers in contravention of section 77 of the Customs Act, 1962 and had intentionally attempted to export the same illegally.
