NESADURAI THIRUNESAN Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) BY virtue of our Miscellaneous Order dated 26.6.06. Mrs. Nirmala Thirunesan and her three children, legal heirs of late Shri Nesadurai Thirunesan (appellant in the above appeal) are co -appellants in the appeal. Shri Thirunesan, on 24.7.97, was about to board a Singapore -bound flight at Anna International Airport, Chennai, when officers of Customs intercepted him and seized foreign currencies worth Rs. 53,62,215/ - from his checked -in baggage. Shri Thirunesan, when questioned, admitted that he had not declared this currency to the Customs. He produced to the officers a currency declaration form which pertained to the currency contained in his hand bag. As regards the currency recovered from his checked -in baggage, he stated that the money belonged to his employer viz. M/s. Aarabee Travels and Foreign Exchange Bureau, London. He reiterated this statement in his reply to the SCN also. However, when the adjudicating authority confronted him with a letter faxed by M/s. Aarabee Travels and Foreign Exchange Bureau, London, wherein the seized currency was claimed by them, Shri Thirunesan took the stand that his employer's letter did not pertain to the money seized from him. These are the basic facts (not disputed) on which ld.Commissioner worked. Ld.Commissioner, in his order, confiscated the currency absolutely in terms of Section 113(d) (e) and (h) of the Customs Act and imposed on Shri Thirunesan a penalty of Rs. 2.5 lakhs under Section 114(i) of the Act. The declared currency (in hand bag) was released to Shri Thirunesan. Aggrieved by the Commissioner's order of confiscation and penalty, Shri Thirunesan filed the captioned appeal.

(2.) MEANWHILE , M/s.Aarabee Travels and Foreign Exchange Bureau, London filed writ petition No. 37403 of 2005 in the High Court of Madras and obtained an interim stay of operation of our proceedings. This stay expired with the elapse of 3 weeks from 1.11.2005. Neither the appellants nor the respondent in the present appeal has brought any further order of the Hon'ble High Court on record to show that stay of these proceedings subsists. The respondent in the present appeal [Commissioner of Customs (Airport), Chennai] is also respondent in the above writ petition before the High Court. Had there been any subsisting stay of our proceedings, ld.Commissioner would have informed us through the DR. Apparently, there is no stay of our proceedings.

(3.) LD .counsel for the appellants submits that the absolute confiscation of the currency is bad in law inasmuch as Section 125 of the Customs Act did not mandate such confiscation of currency, which was not an item notified under Section 123 of the Act. Ld.Commissioner ought to have given option to Shri Thirunesan, from whose possession the currency was seized, to redeem the currency on payment of appropriate fine. In this connection, reliance has been placed on a line of decisions, a few of which are noted below: