Madras High Court
The Commissioner Of Customs vs Shri Pandithurai on 10 March, 2021
CMA.No.2666 of 2009
In the High Court of Judicature at Madras
Dated : 10.3.2021
Coram :
The Honourable Mr.Justice T.S.SIVAGNANAM
and
The Honourable Ms.Justice R.N.MANJULA
Civil Miscellaneous Appeal No.2666 of 2009
The Commissioner of Customs
(Air), Air Cargo Complex,
Meenambakkam, Chennai-27. ...Appellant
Vs
1.Shri Pandithurai
2.The Customs, Excise and Servie
Tax Appellate Tribunal, South
Zonal Bench, Chennai-6. ...Respondents
APPEAL under Section 130 of the Customs Act, 1962 against
Final Order No.325 of 2009 dated 30.3.2009 passed by the second
respondent herein.
For Appellant : Mr.A.P.Srinivas, SSC
For Respondent-1 : Mr.J.Srinivasan
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CMA.No.2666 of 2009
Judgment was delivered by T.S.SIVAGNANAM,J
We have elaborately heard Mr.A.P.Srinivas, learned Senior
Standing Counsel appearing for the appellant and Mr.J.Srinivasan,
learned counsel appearing for the first respondent.
2. This appeal, filed by the Revenue under Section 130 of the
Customs Act, 1962 (for short, the Act), is directed against Final Order
No.325 of 2009 dated 30.3.2009 passed by the Customs, Excise and
Service Tax Appellate Tribunal, South Zonal Bench, Chennai (for
brevity, the Tribunal) namely the second respondent herein.
3. The above appeal was admitted on 28.10.2009 on the
following substantial questions of law :
“1. Whether the Tribunal was right in
reducing the fine and penalty when the
currencies were attempted to be exported in
violation of the Foreign Exchange Management
(Import and Export of Currencies) Regulation,
2000, which tantamount to prohibition under
Section 11 of the Customs Act, 1962? and
2. Whether the Tribunal was right in
interfering with the order of the Original
Authority, which is passed under Section 125
of the Act, that empowers the authority to
give an option for redeeming the goods on
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CMA.No.2666 of 2009
payment of fine, which is a discretion provided
under the Act as held by the Hon'ble Supreme
Court in 1998 (104) ELT 306?”
4. This is the second round of litigation before the Tribunal. The
first respondent brought assorted foreign currencies equivalent to
Indian Rs.58,04,590/-. He was intercepted by the Air Intelligence
Unit in Chennai when he was about to board the flight to Singapore.
It may not be necessary for us to narrate the entire facts and it would
suffice to note that an Order-in-Original dated 26.3.2004 came to be
passed by the Adjudicating Authority wherein there was absolute
confiscation of the foreign currencies and a sum of Rs.5 lakhs was
imposed on the first respondent.
5. Aggrieved by the said order, the first respondent herein filed
an appeal before the Tribunal, which allowed the appeal by order
dated 30.8.2007 wherein a direction was given to the Adjudicating
Authority to adjudicate the case afresh by allowing the first
respondent to redeem the foreign currencies on payment of a
reasonable fine to be determined by him after hearing the first
respondent. On de novo consideration, again an Order-in-Original
dated 26.12.2007 was passed by the Adjudicating Authority, by
which, the first respondent was permitted to redeem the foreign
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CMA.No.2666 of 2009
currencies on payment of Rs.32 lakhs and a sum of Rs.5 lakhs was
imposed as penalty.
6. Once again, the first respondent approached the Tribunal by
filing an appeal. The Tribunal, by the impugned order dated
30.3.2009, modified the order dated 26.12.2007 passed by the
Adjudicating Authority by reducing the fine to Rs.7.5 lakhs and the
penalty to Rs.1 lakh. Aggrieved by that, the Revenue is on appeal
before us.
7. The learned Senior Standing Counsel appearing for the
Revenue has placed reliance on the decision rendered by us in the
case of Commissioner of Customs (Air), Chennai-1 Vs.
M/s.Premium Tours and Travels (Chennai) Pvt. Ltd. [CMA.No.
2749 of 2009 dated 04.2.2021].
8. The substantial question of law framed for consideration in
the said appeal was as to whether the benefit of redemption should
be granted in respect of the confiscated foreign currencies. In that
case, we, after taking into consideration the statutory provisions,
allowed the appeal filed by the Revenue and answered the substantial
question of law in favour of the Revenue.
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CMA.No.2666 of 2009
9. We would have taken note of the said decision rendered by
us and its applicability to the facts of the case provided that there
was no earlier direction issued by the Tribunal dated 30.8.2007 where
there was a positive direction issued to the Adjudicating Authority to
grant redemption of the foreign currencies on payment of reasonable
redemption fine. The Adjudicating Authority passed the order dated
26.12.2007 by fixing the redemption fine at Rs.32 lakhs and levying
penalty at Rs.5 lakhs. On appeal, the Tribunal took note of the earlier
order passed by it wherein there was a direction to impose
reasonable redemption fine and after taking note of its decision and
having regard to the value of the goods, reduced the redemption fine
as well as the penalty. Thus, we find that the Tribunal exercised its
discretion based on the direction issued by it in the earlier round of
litigation and also taking note of its decision. We also find that the
entire matter is factual and that there is no substantial question of
law arising for consideration in this appeal.
10. Accordingly, the above civil miscellaneous appeal is
dismissed. No costs.
10.3.2021
RS
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CMA.No.2666 of 2009
T.S.SIVAGNANAM,J
AND
R.N.MANJULA,J
RS
To
The Customs, Excise and Service Tax Appellate Tribunal, South Zonal
Bench, Chennai.
CMA.No.2666 of 2009
10.3.2021
http://www.judis.nic.in
