T.T. LAPCHA Vs. COMMISSIONER OF CUSTOMS, CALCUTTA

JUDGEMENT

(1.) ALL the four appeals arise out of the same impugned order and as such are being disposed of by a single order.

(2.) BRIEFLY stated the facts of the case are as under: -

(3.) ARGUING on the appeals, Shri V. Prahladka, ld. Advocate submitted that M/s. M.K. Shah Export Ltd. is an export house with annual turnover of about Rs. 25 crores. The U.S. Dollars in question were purchased by the firm from various dealers, M/s. Thomas Cook (I) Ltd. against pay order drawn by Vijaya Bank on account of firm. The said foreign currency was obtained by them to meet the day to day expenses of two employers, Shri T.T. Lapcha and Shri Ghanshyam Patel who were being sent by the firm to Poland on 19 -5 -1994. He submitted that the adjudicating authority as well as the Commissioner (Appeals) have admitted that the foreign currency was acquired by them legally. However, the confiscation has been ordered on the technical ground that whereas the documents show that the same was acquired for Shri T.T. Lapcha, it was illegally handed over to Shri G. Patel in violation of the restriction imposed under Section 8 of the Foreign Exchange Regulation Act, 1973. He submitted that this happened because Shri T.T. Lapcha was promised visa by the authorities at the Airport on 19 -5 -1994 and while Shri T.T. Lapcha was running around at the Airport for procurement of his visa, the said foreign currency was handed over by him to Shri Ghanshyam Patel who was also travelling with him. He submitted that the findings of the authorities below that the said currency was kept concealed by Shri Ghanshyam Patel is contrary to facts on records inasmuch as the examination of the search list would show that U.S. $ 8,000 has been recovered from the briefcase carried out by the appellant and U.S. $ 7,555 have been recovered from the front -inner pocket of the trousers worn by Shri Patel. He submitted that this is the usual method of keeping and carrying the currency and the same cannot be called concealed. In these circumstances, he submits that this was only a technical violation, if at all as the department has accepted the facts that the foreign currency in question was obtained by Shri T.T. Lapcha as an employee of M/s. M.K. Shah Export Ltd. in accordance with law. As regards the personal penalty, he submits that the imposition of penalty on the firm as well as on one of the Director is not justified inasmuch as no extra role has been attributed to the Director of the Company. He in support of his above submissions, relies on the Tribunals decision in the case of M/s. Boda Singh Rajeshwar v. Collector of Customs, Bombay reported in 1991 (56) E.L.T. 810 (Tribunal) = 1991 (37) E.C.R. 685 (CEGAT -WRB) wherein it has been held that non -declaration of travellers cheques in foreign currency amounts to a technical violation and a token fine of Rs. 1,000/ - would meet the ends of justice inasmuch as there is no doubt that the travellers cheques were obtained by the appellants therein in accordance with law. In these circumstances, he prays for setting aside the impugned order.