Whether illicit export of Indian currency liable for absolute confiscation or redeemable on payment of fine?

PJ/Case Law/2014-15/2019

Case:-PERINGATIL HAMZA Vs COMMISSIONER OF CUSTOMS (AIRPORT), MUMBAI

Citation:- 2014-TIOL-488-CESTAT-MUM

Brief facts:-The brief facts of the case are that on intelligence the appellant was intercepted at the Sahara Airport on 08.12.2004 and during the search, Indian currency of Rs.24,17,500/- was found with the appellant which was not declared or not permitted by RBI for export. Therefore, the proceedings were initiated against the appellant and the Indian currency was absolutely confiscated and penalty of Rs.2 lakhs was imposed. Aggrieved from the said order, the appellant is before Tribunal.

Appellant’s contentions:- The ld. counsel for the appellant relies on the case of Amanulah Abul Hassan 2009 (247) ELT 331 (Tri-Chennai) = (2009-TIOL-1084-CESTAT-MAD)and submits that in that case also Indian currencyto the tune of Rs.50 lakhs was found to be attempted to illegally exported by the appellant wherein this Tribunal held that it was only a procedural lapse. Therefore, the Redemption Fine and the penalty were reduced. He prayed that in this case also, the order of absolute confiscation is to be set aside and the Indian currency is allowed to be redeemed on payment of fine an penalty.

Respondent’s contentions:-The ld. AR opposed the contention of the counsel and submits that in that case of Harish Muljimal Gandhi 2013 (294) ELT 470 = (2012-TIOL-2051-CESTAT-MUM) wherein the appellant attempted to export Indian currency to the tune of Rs.24.8 lakhs illegally outside India, in that case this Tribunal held that the absolute confiscation is correct. Therefore, there is no infirmity in the impugned order and same is to be upheld.

Reasoning of judgment:- The Tribunal observed that as there are two contrary decisions before it, therefore, it would be in the interest of justice to refer the matter to the Larger Bench to decide the following issue:- In case a person attempted to export Indian currency outside India without permission of RBI more than Rs.5000/-, in that case whether absolute confiscation is correct or Indian currency can be redeemed by imposition of Redemption Fine and penalty. In view of the above, the matter is referred to larger bench.

Decision:- Matter referred to larger bench.

Comment:- The analogy of the case is that the issue of export of Indian currency of more than Rs. 5000/- without permission of RBI has been covered by two contrary decisions of the tribunal. One decision states that such irregularity is only a procedural lapse while other decision favours absolute confiscation of currency. As the issue was covered by two contrary decisions, matter was referred to larger bench.

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