The main legal point established in the judgment is that the violation of the provisions of the FEMA and Customs Act regarding the export of foreign currency without proper declaration and authorization justifies absolute confiscation, and the court's decision upheld this legal principle.

R. Sudhakar, J.

1. The Revenue has filed the present Civil Miscellaneous Appeal against the order of the Tribunal allowing the confiscated currency to be redeemed on payment of fine of Rs.2.00 lakhs and reducing the penalty imposed by the Adjudicating Commissioner from Rs.5.00 lakhs to Rs.1.00 lakh.

2. The brief facts are as follows:

On 03.10.2001, Late Shri Savier Poonolly, a passenger bound for Bangkok via Singapore by Singapore Airlines flight SQ 409 on SQ ticket No.618 3169 77877642 was intercepted by the Intelligence Officer of Customs attached to Air Intelligence Unit, Anna International Airport Chennai on specific information after he had cleared through the immigration and customs. On questioning in the presence of two independent witnesses as to whether he was in possession of any foreign currency, the passenger replied that he was carrying only 50 US dollars. Not satisfied with the reply, the person and baggage were checked in the presence of the independent witnesses, which resulted in the recovery of 55,500 US $, 710 Singapore dollars and 7370 Thai Bhats. Statement was recorded from the passenger, since he did not declare the said currency nor was in possession of any valid documents to prove the legal export of the foreign currencies out of India. The foreign currencies, which attempted to export out of India totally equivalent to Indian Rs.26,42,625/, were seized under a mahazar for action under the Customs Act, 1962 read with FEMA, 1999. The statement of the passenger was recorded on 03.10.2001. He explained that he had taken the money for the purpose of exploring the possibility of starting a new business, as he had already suffered great loss in India. He also stated that he procured the said amount from nine unknown brokers at Burma Bazaar and proceeded to go abroad taking the said currency without declaration. His house was also searched and statements were recorded. He was arrested on 04.10.2001 and remanded to judicial custody. On the request of the passenger, personal hearing was granted on 27.12.2001 and the case was adjudicated.

3. On hearing the submissions made by the passenger and also the records, the Commissioner came to hold that the foreign currency equivalent to Indian Rs.26,42,625/-, attempted to be exported out of India without any valid document and for which there was no proof of legal acquisition, was liable for confiscation under Section 113 (d), (e) and (h) of the Customs Act, 1962 read with Foreign Exchange Management (Export & Import of Currency) Regulations, 2000, framed under Foreign Exchange Management Act, 1999 and also liable for penal action under Section 114(i) of the Customs Act, 1962. Accordingly, the Commissioner of Customs passed the following order:

“Considering all the facts and circumstances,

(1) I Confiscate absolutely, US$ 55,500, Singapore $710 and Thai Bhats 7370 totally valued at Rs.26,42,625/- (Rupees Six Lakhs Forty Two Thousand Six Hundred and Twenty Five Only) under Sec.113(d), (e) and (h) of the Customs Act, 1962 read with Foreign Exchange Management (Export & Import of Currency) Regulations 2000, framed under Foreign Exchange Management Act, 1999.

(2) I impose a penalty of Rs.5,00,000/- (Rupees Five Lakhs only) under Sec.114(i) of the Customs Act 1962.”

4. Aggrieved by the order of the Adjudicating Authority, an appeal was preferred before the Customs, Central Excise and Service Tax Appellate Tribunal. The Tribunal, by a brief order dated 26.4.2005 set aside the order of absolute confiscation and allowed the redemption of foreign currencies on payment of a fine of Rs.2.00 lakhs and also reduced the penalty. The Tribunal while disposing of the appeal, held as follows:

“4. We have perused the record and heard ld. DR who has emphasized that while the appellant may legally be entitled to make remittance for technology purchase purposes, the fact remains that, in the present case, currency was not being remitted through banking channel. Further the currenc