The Principal Commissioner Of Customs vs. Thomas Benny

Heard Mr. Vuhal' K. Punna, learned Senior Standing Counsel for the Central Board of Indirect Taxes and Customs (C.B.I.C.), for the - appellant; and Ms.T. Niharika, learned counsel representing Mr Lakshmi Kanth, for the respondent'

The whole case revolves around the prosecution case initiated by the Customs Department against the respondent under the provisions of the Customs Act, 1962, (for short, 'the Act'f '

It is the case of appellant that on 06'05'2019 the respondent herein, an Indian Passport holder, was intercepted by the officials of the Customs (AIR Intelligence Unit) at the International Airport area of the Rajiv Gandhi International Airport' at Hyderabad' while the respondent was proceeding to board flight No'EK529 to Dubai' Upon interrogation and examination of his baggage' it was found that the respondent was in possession of assorted foreign currency of various denominations which as per INR was worth Rs.29,5O,O9i/-' The said foreign currency was not declared with the Customs Authority at the time of either checking or while boarding the flight' It was also reflected in the course of examination by the petitioner that the respondent had not obtained any authorisation or sanction from the Reserve Bank of India for carrying the said foreign currencies' It "r'as a-lso revealed that there was no cogent documentary proof or evidence to establish that the foreign currency was procured from various persons in accordance with the Foreign Exchange M*anagement (trxport and Imporr of Currencv) Regulations, 2O t5. Subsequently, proceedings were dran'n under the provisions of the Customs Act, 7962 and also under 1.he Foreign Exchange Management (Export and lmport of currencv) Regulations, 2o 1 5. Thereai ,er, the Additionai commissioner of customs in the course of artjudication of the proceedings, vide Order in-Original No.109/2019, dated 30.11.2019, ordered for absolute confiscation of the afore;nentioned foreign currencl w-orth Rs. 29,50,09 1/-. In addition, the rr.spondent was also inflicted per.raltv of Rs,4 lakhs.

Thc Order-in Original No.109/2019, dated gt).17.2O1g, passed by the Additiona,l commissioner customs was subj 3cted to chalrenge before the Principal commissioner of customs & cer.trar rax (Appeals- I). vide order datcd 24.09.2o2o, ord.er-in-Appeal i'ro.HyD-cUS-o0o- APP-062 20 21(APP I), the commissioner of Appr ars affirmed the order passed b-r' the Additional commissioner customs, dated 30.1 1.2019. Howe,u'er. tl're commissioner of Appe rls set aside the order to the extent of absolute confiscation and per.mitted release of the foreign exchalge to the respondent on payment r f redemption fine amount of Rs.7,50,00O1 , in addition to confirming penalty amount of Rs. 4 lakhs as imposed b1' the adjudicating authority.

The above order passed by the Commissioner of Customs (Appeals) dated 24.O9.2020 was subjected to fnrther challenge by the respondent before the Customs, Excise and Service Tax Appeliate Tribunal (for short, 'the Tribuna,I'), Regional Bench, at Hyderabad, vide Customs Appeal No.30089 of 2022. Simultaneously, the petitioner- Department also being aggrieved of the order passed by the Commissioner of Customs (Appeals) initiated proceedings before the Revisional Authority, i.e., the Government of India under the statutory scheme governing the field. When the appeal hled by the respondent, viz., Customs Appeal No.30089 of 2022, was listed for admission on 21.O4.2023, the respondent could not be represented by its counsel on the date of listing. However, upon hearing, uide order dated 21.04.2023 in Customs Appeal No.30089 of 2022, the Tribunal dismissed the appeal hled by the respondent holding it to be 'not maintainable' since the proper course of action was to prefer a Revision before the Revisional Authority-Government of India where in fact the petitioner-Department themselves had sought for initiation of the Revisional powers.

Since the above Customs Appeal No'30089 of 2022 was clismissed by the Tribunal in absentia of representation on behalf of respondent / appellant, the respondent preferred a restorationpetition, viz., Customs Miscellaneous Application No.30456 of 2024 (ROA). l/ide the impr-rgt-red order, the said restoratior_.. application stood allowed restoring the appea-l to its original file E. Learned counsel appearing on behalf of peritioner Department prirnaril,.' contended that the application for restoration itself was not maintainable at the first instance, therefore tt e decision of the Tribunal in entertaining the restoration application is bad in law; when the Tribunal had decided the appeal and d ismissed the same holding it to be 'not maintainable' on account of exi ttence of remedy of Reuision before the Revisional Authority-Governmr)nt of India, there was no scope left for consideration through a rest,)ration petition; at best it could have been a case for review or recali, lrut definitely not a restoration petition; and therefore, prayed that there are no merits in the instant appeal and prayed for quashment of the impugned order.

Learned courrsel lor the petitioner further cortended that once the appellant had exercised revisional powers assailr ng the same order under challenge b1 u,a] of appeal before the revisio ral authority, and the Tribunal also having dismissed the appeal at the first instance, it could not have re-opened it again that too exer.cising powers of restoration; and therefore. pral'ed for allowing the appeal by quashing the impugned order. I

Having heard the contentions put forth on either side and on a perusal of the record, particularly taking into consideration the documents and materials enclosed along with the appeal, certain facts which are undisputed are that being aggrieved of the order passed by the Commissioner of Customs (Appeals) dated 24.O9.2O2O, the respondent herein had preferred an appeal before the Tribunal. When the matter was iisted before the Tribuna-l on 2l .O4.2O23, there was no representation on behalf of the respondent. However, the authorized representative of the appellant-Department took a preliminary objection so f.rr as mair-rtainability of the appeal and submitted that the appellant Department itself had gone in for a revision before the Government of India challenging the same order which the respondent had challenged in the instant appeal. Only on the basis of a preliminary objection raised by the authorized representative of the appellant-Department and basing on its contention that the appellant_ Department had also preferred a Revision before the Government of India, the appeal filed b1- the respondent stood dismissed by the Tribunal. Thereafter, the respondent filed restorarion petition before the Tribr-rna1 which came up for hearin g on 04.O9.2i125. In the course of hearing on the restoration petition, the respondent / appellant before the Tribunal had shown certain preceder ts of the Honble Supreme Court as also of various High Courts whereunder it was held that it u'ouid an "appeal" vi.hich would be maintirinable before the Tribunal and not a "revision" before the Centra I Government, by differenti ating betu'een currency and baggage.

In the instant case, learned counsel for the appellant- Department, though argued that the definition of ",.:urrency,, includes foreign cLrrrencv and therefore the initiai order passed by the Tribunal dismissing the appeal holding it to be not maintainable was proper, legal and justified, in the opinion of this Bench, this aspect is yet to be considered by the Tribunal. This objection raised by the appellant-

Therefore, for all the aforesaid reasons, the finding arrived at by the Tril;rrnal insofar as paragraph No.1l (2) of the impugned order clated 25.09.2025 passed in the restoration petition is to be held to be bad. Thc other remainrng portion of the order re,mains intact. The appezrl l-refore tl-re Tribunal q,ould stand restored to its original number zrnd the cluestion of maintainability is left open to be decided by the 'i'riburLal in the course of hearing the appeal on aclmission when it is taken uD lor hearing

Accordinglv, the instant appeal to the aforesaid extent stands clisposecl of maintaining the order passed by the 'lribunal insofar as restoring the appeal for re hearing is concerned. [{owever. the order passed by the Tribuntrl insofar as holding th at the appeal 1S maintainable belore the Tribunal and not a Rcvision before the Revisional Authority Govcrnment of India, is accordingly set aside. In the coui.se of hearing, the appeal including that of admission, the parties are free to address the Tribunal on the aspect of - maintainability and the Tribunal is expected to decide the aspect of maintainability first by way of a speaking order ald thereafter proceed and decide the appeal, if required, in accordance with law

This Court makes it clear that we have not expressed any opinion on the merits of the case, including the question of maintainability

With these observations, the appeal stands disposed of. No costs

As a sequel, miscellaneous applications pending if any, shall stand closed. K.SRINIVASA RAO JOINT REGISTRAR //// E TION OFFICER To,