ORDER
J.H. Joglekar, Member (T)
1. These two appeals arise out of the single order of the Commissioner of Customs (Preventive), Mumbai. The facts are common. These are therefore disposed of by this common order.
2. Both appellants who are Yemen national were intercepted at the time of departure. Foreign exchange in the form of US $ 28,000/- was seized from their possession. In their identical statement both appellants deposed that they were frequent visitors in India. They were engaged in buying and selling goods in both Yemen and in India. The sale proceeds were got converted by them into foreign exchange in the market which foreign exchange they were taking with them. The statement were made on 14-4-1999. On 15-5-1995 (Sic) both appellants submitted certificate from Money Changers in Yemen to the effect that the total amount of US $ 28,000/- was released to the two appellants.
3. After issue of show cause notice and after hearing the appellants, the Commissioner passed orders. He took notice of the certificate given by the Money Changers but preferred to rely upon the confessional statements. He confiscated the currencies absolutely and also imposed penalties of Rs. 1 lakh each on the appellants. Hence the appeal.
4. We have seen the certificate given by the Money Changers, The validity of this certificate is not contested or challenged. The Commissioner however disregarded these and made his order placing reliance exclusively on the confessional statements although retracted. A similar situation was before the Tribunal in the case of Mr. Philip Fernandis. In that case also the person from whom the currency was seized at the point of export had made confessional statement to the effect that the foreign exchange was acquired in India. Later, however, evidence of lawful acquisition of the currency while he was abroad was produced. The Tribunal accorded relief relying upon such documentary evidence. [Order No. CI/1923-26/WZB/2002, dated 16-7-2002. [2002 (146) E.L.T. 180 (Tribunal)].
5. The ratio of the judgment would apply to these two appeals. We also observe that foreign exchange in the present circumstances not being prohibited goods, the order of absolute confiscation do not sustain. In modification of these orders, we permit Mrs. Kamara Jaid Mohammed to redeem foreign exchange, of 15,000/- US $ on payment of fine of Rs. 60,000/-. We also permit Mrs. Naseem M. Mohammed to redeem the foreign exchange of US $ 13,000/- on payment of fine of Rs. 50,000/-. The penalties imposed upon both appellants are remitted fully.
6. The appeals are thus partly allowed.