Madras High Court
Maddi Narayana vs Additional Secretary on 6 February, 2023
W.P.No.140 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.02.2023
CORAM :
The HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P. No.140 of 2023
Maddi Narayana .. Petitioner
vs
1. Additional Secretary,
Government of India,
Ministry of Finance,
14, Hudco Vishala Buildings,
B Wing,
6th Floor,
Bhikaji Cama Place,
New Delhi - 110 066.
2. The Principal Commissioner of customs,
Commissionerate - I,
New Custom House,
Air Cargo complex,
Meenambakkam,
Chennai - 600 027. ... Respondents
Petition filed under Article 226 of the Constitution of India
praying to issue a writ of Certiorarified Mandamus, to call for the files
relating to the order passed in Order No.305/2022 in
F.No.373/179/B/2016-RA, dated 30.09.2022 and to quash the same with
a direction to the first respondent to release the goods on redemption fine
mandated under Section 125 of the Customs Act, 1962 or to remand back
the case to the First Respondent.
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W.P.No.140 of 2023
For Petitioner : Mr.T. Chezhiyan
For Respondents : No appearance for R1
Mr.K.S. Ramaswamy,
Junior Panel Counsel for R2
ORDER
By consent of both the parties, this writ petition is taken up for
final disposal in the admission stage itself.
2. Mr.K.S. Ramaswamy, learned Junior Panel Counsel accepts
notice for the 2nd respondent.
3.The only point that arises for consideration in this writ petition
is whether the Original Authority has exercised his discretion correctly
by rejecting the petitioner's application filed under Section 125 of the
Customs Act, 1962 seeking for redemption of Indian and Foreign
currencies confiscated from the petitioner by paying fine.
4. Section 125 of the Customs Act, reads as follows :-
125. Option to pay fine in lieu of confiscation.—
(1)Whenever confiscation of any goods is authorised by this Act, the
officer adjudging it may, in the case of any goods, the importation or
exportation whereof is prohibited under this Act or under any other
law for the time being in force, and shall, in the case of any other
goods, give to the owner of the goods 1[or, where such owner is not
known, the person from whose possession or custody such goods have
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W.P.No.140 of 2023
been seized,] an option to pay in lieu of confiscation such fine as the
said officer thinks fit:
[Provided that, where the proceedings are deemed to be
concluded under the proviso to sub-section (2) or Section 28 or under
clause (i) of sub-section (6) of that section in respect of the goods
which are not prohibited or restricted, "[no such fine shall be
imposed].
Provided further that], without prejudice to the provisions of
the proviso to sub-section (2) of section 115, such fine shall not
exceed the market price of the goods confiscated, less in the case of
imported goods the duty chargeable thereon].
[(2) Where any fine in lieu of confiscation of goods is imposed
under sub-section (1), the owner of such goods or the person referred
to in sub-section (1), shall, in addition, be liable to any duty and
charges payable in respect of such goods.]
[(3) Where the fine imposed under sub-section (1) is not paid
within a period of one hundred and twenty days from the date of option
given thereunder, such option shall become void, unless an appeal
against such order is pending.
Explanation.--For removal of doubts, it is hereby declared that
in cases where an order under sub-section (1) has been passed before
the date on which the Finance Bill, 2018 receives the assent of the
President and no appeal is pending against such order as on that date,
the option under said sub-section may be exercised within a period of
one hundred and twenty days from the date on which such assent is
received.]
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W.P.No.140 of 2023
5. The petitioner contends that foreign and Indian currencies
confiscated being a restricted item, they are entitled for redemption as
per the provisions of Section 125 of the Customs Act, 1962. It is also his
case that even for prohibited goods, an applicant can seek for
redemption of the said prohibited item by paying a fine as per the
provisions of Section 125 of the Customs Act.
6. Admittedly, the petitioner was carrying excess Indian and
foreign currencies while travelling to Dubai from Chennai and the same
has been confiscated as per the provisions of the Indian Customs Act,
1962. Thereafter, the petitioner has sought for redemption as per the
provisions of Section 125 of the Customs Act, which has been rejected
by the Original Authority on the ground that in India, the petitioner had a
declared Income of only Rs.6,00,000/- annually and therefore, it is not
possible for the petitioner to carry Indian and foreign currencies worth
Rs.58,29,225/- .
7. Aggrieved by the same, the petitioner has also filed statutory
appeal before the Commissioner of Customs (Appeals), under Section
129A of the Customs Act, 1962 and the order of the Original Authority
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W.P.No.140 of 2023
was confirmed by the Commissioner of Customs (Appeals) in his order
dated 04.07.2016.
8. Aggrieved by the same, the petitioner has also filed a revision
under Section 129-DD before the revisional authority viz., 1st respondent
herein, who has also confirmed the orders passed by the Original
Authority as well as the Appellate Authority.
9. Aggrieved by the impugned orders of the Original Authority,
Appellate Authority and the revisional Authority, the petitioner has filed
this writ petition.
10. A counter affidavit has also been filed by the 2nd respondent
stating that the petitioner had carried excess Indian and foreign
currencies in violation of Regulation 5 of the Foreign Exchange
Management (Export and Import Currency) Regulations, 2015 and
therefore, being prohibited goods, the question of granting redemption to
the petitioner under Section 125 of the Customs Act, 1962 will not arise.
According to them, the authorities have exercised their discretion
judiciously while rejecting the petitioner's application under Section 125
of the Customs Act, 1962 and therefore, the question of interfering with
the said orders under Article 226 of the Constitution of India will not
arise.
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W.P.No.140 of 2023
11. The learned counsel for the petitioner relied upon the
following authorities in support of his contention that the discretion has
not been exercised judiciously by the Original Authority before rejecting
the petitioner's application filed under Section 125 of the Customs Act,
1962 seeking for redemption of the confiscated Foreign and Indian
currencies.
a) Union of India vs. Rostam Parvaresh reported in 2011 SCC
Online Bom 1955
b) Raju Sharma and another vs. Union of India and Others
reported in 2019 SCC Online Del 12237
c) Commissioner of Customs v. Atual Automations Pvt. Ltd.,
reported in 2019 (365) E.L.T. 465 (S.C.)
12. It is not in dispute that under Section 125 of the Customs Act,
1962, an option to pay a fine in lieu of confiscation can be sought even
for prohibited goods. The judgments relied upon by the learned counsel
for the petitioner referred to supra dealt with cases, where discretion was
exercised in favour of the applicant by the Original Authority under
Section 125 of the Customs Act, 1962 by granting redemption, which
was not interfered with by the High Court.
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W.P.No.140 of 2023
13. But in the instant case, the Original Authority, the Appellate
Authority as well as the Revisional Authority viz., the 1st respondent
herein have concurrently held that the petitioner is not entitled for
redemption of the confiscated foreign and Indian currencies.
14. The Original Authority has passed a detailed order for rejecting
the petitioner's application. The reasons given by them are as follows :-
30. The passenger has claimed that the currency
belonged to him and that he was taking it out of India to invest
as a partner in a restaurant in Dubai. Hence, I specifically note
that the total value of currency seized (Foreign Currency &
Indian Currency) amounts to Rs.58,29,225/- and he himself has
stated in his statement under Section 108 of Customs Act, 1962
that he was an Income Tax assessee with an annual income of
Rs.6 lakhs. A person having an annual income of Rs.6 lakhs
claiming to own almost 10 times of the same in currency for
export without any explanation to the source of Additional
source of funding definitely does not look plausible. The
passenger even till date has also not been in a position to
explain or show evidences as to how he owns the said money
and how and where he procured the said currency. Hence, it
has to be taken that he does not own the money that he was
carrying the currency on behalf of some one else.
15. The Original Authority has exercised its discretion based upon
the aforesaid reasons and held that the petitioner is not entitled for
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W.P.No.140 of 2023
redemption of the confiscated Indian and foreign currencies as per the
provisions of Section 125 of the Customs Act, 1962.
16. The Appellate Authority viz., the Commissioner of customs
(Appeals) has also confirmed the findings of the Original Authority by
his order dated 04.07.2016. Thereafter, the petitioner has preferred a
revision as per the provisions of the Customs Act, 1962 before the 1st
respondent, who has also rejected the said revision by confirming the
findings of the Original Authority as well as the Appellate Authority.
17. Admittedly, the petitioner has carried Indian and foreign
currencies by violating Regulation 5 of Foreign Exchange Management
(Export and Import Currency) Regulations 2015, which reads as follows
:-
"Prohibition on export and import of foreign currency : -
Except as otherwise provided in these regulations, no person shall,
without the general or special permission of the Reserve Bank, export
or send out of India, or import or bring into India, any foreign
currency".
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W.P.No.140 of 2023
18. Admittedly, the confiscation order passed in respect of foreign
and Indian currencies seized from the petitioner has also attained finality.
Therefore, it is clear that the petitioner has violated the Regulation 5 of
Foreign Exchange Management (Export and Import Currency)
Regulations 2015. Under Section 125 of the Customs Act, 1962 it is a
discretionary power. Having exercised the discretion by giving sound
reasons, the question of interference by this Court exercising powers
under Article 226 of the Constitution of India in respect of the orders,
which have been challenged in this writ petition will not arise.
This Court is not an Appellate Court and only when the orders
challenged are perverse, the question of interference with regard to those
orders will arise. The reasons given by authorities for rejecting the
petitioner's application under Section 125 of the Customs Act are sound
and justifiable.
19. In the decisions relied upon by the learned counsel for the
petitioner, those are decisions where discretion was exercised and the
relief was granted to the person whose goods were confiscated by the
Original Authority but in the instant case it is not so. Here is a case,
where all the three authorities, who have passed the orders, which have
been impugned in this writ petition have consistently held that the
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W.P.No.140 of 2023
petitioner is not entitled for redemption. When it is not in dispute that
the petitioner has violated Regulation 5 of Foreign Exchange
Management (Export and Import Currency) Regulations 2015 and that
too when the confiscation order has attained finality and that too when
the impugned orders are not perverse, this Court while exercising powers
under Article 226 of the Constitution of India has to necessarily reject
this writ petition as it is bereft of any merit.
20. For the foregoing reasons, this writ petition is dismissed. No
costs.
06.02.2023
Index:Yes/No
Neutral Citation:Yes/No
vsi2
To
1. Additional Secretary,
Government of India,
Ministry of Finance,
14, Hudco Vishala Buildings,
B Wing,
6th Floor,
Bhikaji Cama Place,
New Delhi - 110 066.
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W.P.No.140 of 2023
ABDUL QUDDHOSE, J.
vsi2
2. The Principal Commissioner of customs,
Commissionerate - I,
New Custom House,
Air Cargo complex,
Meenambakkam,
Chennai - 600 027.
W.P. No.140 of 2023
06.02.2023
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