Writ Petition No. 30418 of 2012 · Madras High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.11.2012CORAMTHE HONOURABLE MR. JUSTICE R.SUDHAKARWrit Petition No.30418 of 2012andM.P.No.1 of 2012 Saranala Appa Rao, ... Petitioner vs.

Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, 14, Hudco Vishala Building, B-Wing, 6th Floor, Bikaji Cama Place, New Delhi 110 006.

The Commissioner (Appeals), No.60, Rajaji Salai, Custom House, Chennai-1.

The Additional Commissioner of Customs (Adjn-Air), No.60, Rajaji Salai, Custom House, Chennai-1. ... Respondents Writ Petition is filed under Article 226 of Constitution of India praying to issue a Writ of Certiorari, calling for the records of the first respondent in order No.166/2012-Cus dated12.4.2012 and to quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.T.Chezhiyan For Respondent :Mr.V.Kathirvelu, Central Government Standing Counsel, for R1 and R2.Mr.P.Mahadevan, for R3. -----

O R D E RThis Writ Petition is filed praying to issue a Writ of Certiorari, calling for the records of the first respondent in orderNo.166/2012-Cus dated 12.4.2012 and to quash the same.2. Heard Mr.T.Chezhiyan, learned counsel appearing for the petitioner; Mr.V.Kathirvelu, learned Central Government StandingCounsel, appearing for the respondents 1 and 2 and Mr.P.Mahadevan, learned counsel appearing for the third respondent.3. On 16.9.2008, 34,500 US Dollars was seized from the petitioner when he was bound for Hong Kong by Cathay Pacific Flight. On 19.12.2008, a show-cause notice was issued for seizure of the offending goods and for proposing penalty. After considering the case an order-in-original was passed on 15.7.2009 confiscating the entire foreign currency and a penalty of Rs.5,00,000/- was imposed. On 17.9.2009, petitioner filed an appeal before the Commissioner(Appeals) and the Commissioner (Appeals) by order dated 30.6.2011gave the petitioner option to redeem the foreign currency on payment of Rs.7,50,000/-. The penalty of Rs.5,00,000/- was reduced toRs.2,50,000/-. As against the order passed by the Commissioner(Appeals), a revision was filed to the first respondent on10.8.2011 and final order has been passed by the first respondent on13.4.2012 and that is under challenge.

According to the petitioner, the order passed by the first respondent is totally without application of mind and the nature of order that was passed by the original authority. The order proceeds https://hcservices.ecourts.gov.in/hcservices/ on a wrong premise that the original authority imposed a penalty ofRs.15,00,000/- and that has been reduced to Rs.2,50,000/- which apparently not correct. This establishes the case of nonapplication of mind.

The plea of the petitioner that he is entitled to take certain amount as basic travellers quota during the relevant time and to that extent the amount under seizure cannot be said to be offending goods. The petitioner is entitled to the benefit of BasicTravellers Quota while carrying foreign currency. Besides, the first respondent authority has failed to take into consideration the decision of the Tribunal reported in 2005(192) ELT 263 (Tri. Chennai)(Savier Poonolly – vs. - Commissioner of Customs, Chennai) where in respect of seizure of 55,500 US Dollars, the Tribunal has though it fit to reduce the redemption fine in lieu of confiscation toRs.2,00,000/- and the penalty to Rs.1,00,000/- as againstRs.5,00,000/- penalty imposed. The same has not been considered by the authority. This plea has been taken by the petitioner consistently before the respondent authorities. He, therefore, pleads for setting aside the fine and penalty or for reduction as above.

On the plea of redemption fine and penalty that can be imposed by the adjudicating authority or by the appellate authority is the discretion of the competent authority subject to the limits provided under the Customs Act, 1962 read with Foreign ExchangeManagement Act, 1999 and Foreign Exchange Management (Export and Import of Currency) Regulation 2000. In this case, redemption fine and penalty imposed alone is stated to be excessive and not otherwise.

Having noted the above plea, this Court finds that in this case, the authority has failed to consider the fact that the original authority has imposed a penalty of Rs.5,00,000/- and that was reduced to Rs.2,50,000/- by appellate authority. The first respondent has, however, proceeded to decide the case as if the reduction of penalty is justified from Rs.15,00,000/- toRs.2,50,000/- which is not the fact. The redemption fine imposed in this case is Rs.7,50,000/- for which petitioner relies upon the above decision for reduction of redemption. The first respondent has failed to consider the decision of the Tribunal and also failed to take note of the fact the quantum of penalty imposed by the original authority is only Rupees Five Lakhs. https://hcservices.ecourts.gov.in/hcservices/

In this case, the revisional authority has reduced the redemption fine to Rs.5,50,000/-. However, declined to interfere with the quantum of penalty. The rejection of the plea on penalty ison a wrong premise factually. In such view of the matter, the plea of the petitioner that there is non application of mind insofar as the quantum of penalty and non appreciation of the order of the Tribunal with regard to the imposition of redemption fine and penalty deserves to be reconsidered by the first respondent. Accordingly, the impugned order is set aside and the matter is remitted to the first respondent to reconsider the case on merits as expeditiously as possible.

The Writ Petition is allowed by way of remand. No costs. Consequently, connected miscellaneous petition is closed. Sd/-Assistant Registrar/TRUE COPY/Sub Assistant RegistrartsTo1.Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, 14, Hudco Vishala Building, B-Wing, 6th Floor, Bikaji Cama Place, New Delhi 110 006.2.The Commissioner (Appeals), No.60, Rajaji Salai, Custom House, Chennai-1. https://hcservices.ecourts.gov.in/hcservices/

3. The Additional Commissioner of Customs (Adjn-Air), No.60, Rajaji Salai, Custom House, Chennai-1. +1CC to M/s.T.Chezhiyan for Petitioner SR.72859/12+1CC to Mr.V.Kadhirvelu for Respondent SR.72850/12+1CC to M/s.P.Mahadevan for Respondents SR.72611/12 Order in W.P.No.30418 of 2012CES(CO)KSA(07/12/2012)