ANODIYIL MAMMU Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) PETITIONER was apprehended at the InternationalAirport Trivandrum with foreign currency on 24 -12 -2000. Show cause notice was issued to the petitioner under Section 124 of the Customs Act calling upon him to show cause as to why the foreign currency equivalent to Rs. 73,85,423.20 under seizure should not be confiscated to the Government under Sections 113(d), 113(e) and 113(h) of the Customs Act, 1962 and why some of his properties mentioned in Para 24 should not be confiscated to the Government under Section 119 of the Customs Act, 1962 and why a penalty should not be imposed under Section 114 of the Customs Act, 1962. Petitioner filed an application before the Special Director in the Directorate of Enforcement for compounding the contravention of the provisions of the Foreign Exchange Management Act. This application of the petitioner was rejected by the Special Director in the Directorate of Revenue Intelligence. It was held by him that relevant provisions of Section 15 of the Foreign Exchange Management Act governing the powers to compound contraventions under the said Act were quite clear in that regard and compounding authority's powers to compound were exercisable with reference to Section 13 of the Act which relate to contraventions coming with the purview of FEMA. It was held that contraventions of the provisions of other Acts like the Customs Act did not come within the jurisdiction of the Compounding Authority under FEMA. It was held that since no case had been registered or initiated against the petitioner for investigation under any of the provisions of FEMA, 1999 by any of the authorities and action taken by the DRI authorities under the Customs Act has been held as valid by the Single as well as Division Bench of the High Court of Kerala, the application of the petitioner for compounding could not be entertained at that stage and the application under Section 15 of the Act was not maintainable. Being aggrieved by the order of the Special Director in the Directorate of Revenue Intelligence, the petitioner has filed the present petition.

(2.) IT is contended that since the foreign exchange has been seized from the petitioner and in the show cause notice reference has been made to the violation of the provisions of Foreign Exchange Regulation Act and Foreign Exchange Management Act, the notice though camouflaged as notice under the Customs Act is in fact notice under the provisions of Foreign Exchange Management Act. It is, thereforee, submitted that the application of the petitioner for compounding should have been considered on merits under the provisions of FEMA and could not have been rejected only on the ground that no notice had been issued to the petitioner or no case had been registered against him under FERA or FEMA.

(3.) I am not impressed with the arguments advanced by learned Counsel for the petitioner. The area of operation of FEMA and Customs Act are totally different. The notice given to the petitioner is under the provisions of the Customs Act, 1962 and since no case has been registered and no proceedings have been initiated against the petitioner under the provisions of the Foreign Exchange Regulation Act or the Foreign Exchange Management Act, in my view, there is no illegality in the impugned order passed by the Special Director in the Directorate of Revenue Intelligence inasmuch as the application for compounding has been rightly held to be not maintainable in the absence of any such proceedings against the petitioner. The petition in my view is wholly misconceived and is, accordingly, dismissed.