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Judgment
Honourable Mr. Justice R. Sudhakar
This Writ Petition is filed praying to issue a Writ of Certiorari, calling for the records of the first respondent in order No. 166/2012-Cus dated
12.4.2012 and to quash the same. Heard Mr. T. Chezhiyan, learned counsel appearing for the petitioner; Mr. V. Kathirvelu, learned Central
Government Standing Counsel, appearing for the respondents 1 and 2 and Mr. P. Mahadevan, learned counsel appearing for the third respondent.
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 30.6.2011 gave the petitioner option to
redeem the foreign currency on payment of Rs. 7,50,000/-. The penalty of Rs. 5,00,000/- was reduced to Rs. 2,50,000/-. As against the order
passed by the Commissioner (Appeals), a revision was filed to the first respondent on 10.8.2011 and final order has been passed by the first
respondent on 13.4.2012 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 on a wrong premise that the original authority imposed a penalty of Rs. 15,00,000/- and that
has been reduced to Rs. 2,50,000/- which apparently not correct. This establishes the case of non application 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 Basic Travellers Quota while carrying foreign
currency. Besides, the first respondent authority has failed to take into consideration the decision of the 2005 (192) ELT 263 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 to Rs. 2,00,000/- and the penalty to
Rs. 1,00,000/- as against Rs. 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 Exchange Management 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/- to Rs. 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.
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 is on 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.