IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 WP(C).No. 23952 of 2011(T) -------------------------- PETITIONER(S): ----------------------- 1. M/S.LOUIS HELLENIC CRUISES LTD., 8, ANTONIOU AMPATIELOU, PIRAEUS, GREECE, REP. BY MR.ROBERT WILLIAM, AGED 68 YEARS, S/O.N.D.CHACKO, BRANCH MANAGER JAMES MACKINTOSH & CO.PVT.LTD., DARRAGH SMAIL CENTRE,2ND FLOOR,5TH CROSS ROAD,W/ISLAND,COCHIN-03 2. JAMES MACKINTOSH & CO.PVT.LTD., DARRAGH SMAIL CENTRE, 2ND FLOOR, 5TH CROSS ROAD, W/ISLAND, COCHIN-682003, REP. BY ITS BRANCH MANAGER MR.ROBERT WILLIAM, AGED 68 YEARS, W/O.N.D.CHACKO. BY ADV. SRI.V.J.MATHEW, SENIOR ADVOCATE SRI.BIJISH B.TOM RESPONDENT(S): ------------------------ 1. THE COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, W/ISLAND, COCHIN-682009. 2. THE ASST. COMMISSIONER OF CUSTOMS(SIIB), CUSTOM HOUSE, W/ISLAND, COCHIN-682009. 3. UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF FINANCE, NEW DELHI-110006. 4. J.M.BAXI & CO. NO. XXIV/1566, SUBRAMANIAN ROAD, W/ISLAND, COCHIN-682003. ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA FOR R1-3 SR.THOMAS MATHEW NELLIMOOTTIL, SC FOR R1 TO R3. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.23952/11 APPENDIX PETITIONERS' EXHIBITS EXT.P1: TRUE COPY OF THE ORDER NO.7/2011 DT 6.5.11 PASSED BY THE 1ST RESPONDENT. EXT.P2: TRUE COPY OF THE LETTER DT 8.8.11 ISSUED BY THE 1ST PETITIONER TO THE 1ST RESPONDENT. EXT.P3: TRUE COPY OF THE COVERING LETTER NO.CL/COC/0110/58 ISSUED BY THE 2ND PETITIONER TO THE 1ST RESPONDENT. EXT.P4: TRUE COPY OF THE LETTER DT 17.8.11 ISSUED BY THE 4TH RESPDNENT/AGENTS TO THE 1ST RESPONDENT. EXT.P5: TRUE COPY of THE LETTER/ORDER F.NO.SIIB/02/2010 CUS DTD 29.8.11 ISSUED BY THE 2ND RESPODNENT TO THE 2ND PETITIONER. EXT.P6: TRUE COPY OF THE LETTER DT 30.8.11 ISSUED BY MR.ST.ROMEOS, THE MASTER OF THE VESSEL MV AQUAMARINE TO THE 1ST RESPONDENT //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 23952 OF 2011 ===================== Dated this the 5th day of September, 2011 J U D G M E N T First petitioner is a shipping company incorporated in Greece, who are the Commercial Managers of the foreign cruise vessel MV AQUAMARINE and the second petitioner is its P & I correspondent in Cochin. In this writ petition filed, the prayer sought is to quash Ext.P5 and to direct the respondents 1 and 2 to return/redeem confiscated amount to the second petitioner. 2. In Ext.P1 order of adjudication passed by the 1st respondent, `82,70,050/- recovered from the aforesaid vessel was ordered to be confiscated with an option to redeem the same. The operative portion of the order reads thus; “I order confiscation of the Indian currency of Rs.82,70,050/- under section 113(d) and 113(h) of the Customs Act, 1962 read with Section 6(3)(g) of FEMA. However I give an option to redeem the Indian Currency on payment of fine of Rs.15,00,000/- (Rupees Fifteen Lakhs Only) and instructed not to export the same without observing legal formalities. I also impose Rs.3,00,000/- (Rupees three lakhs only) on the Chief Executive Officer, Louis Cruise India Pvt.Ltd, penalty of Rs.1,50,000/- (Rupees One lakh fifty thousand only) on Mr.Krikonas Dimitrios the Chief Purser of th vessel M.V.Aquamarine of Rs.1,50,000/- (Rupees One lakh fifty thousand only) on Mr.St.Romeos, Master of the WPC No. 23952/11 :2 : vessel M.V.Aquamarine and penalty of Rs.1,00,000/- (Rupees One lakh only) on Shri.C.Jayaprakash, Branch Manager, M/s.J.M.Baxi & Co. Cochin under section 114/117 of Customs Act, 1962”. 3. By Ext.P2 request, first petitioner informed the 1st respondent that they are nominating and appointing the second petitioner to pay the penalties and redeem the confiscated amount and that the second petitioner will in turn pay the same to to the customs authorities and directly transfer the redeemed amount to the first petitioner's account. Ext.P4 is a letter given by the 4th respondent, the agent of the vessel informing the first respondent that they have no objection to the course of action suggested by the first petitioner in Ext.P2. Accordingly second petitioner remitted the fine and penalty ordered in Ext.P1, which fact is not a disputed one. Despite all this, Ext.P5 was issued by the 2nd respondent declining the request and informing that the amount can be claimed only by the 4th respondent, agent of the 1st petitioner. This order reads thus; “This has reference to your letter CL/COC/0110/58 dated 17.8.11 and the clarification sought by M/s.Louis Hellenic Cruises Ltd., the Commercial managers of the cruise vessel M.V.Aquamarine regarding payment of dues and redemption of confiscated INR 82,70,050/- It is noticed that the master of the vessel has authorized M/s.J.M.Baxi & Co. their local agents to WPC No. 23952/11 :3 : conduct any transaction that would arise subsequent to adjudication of the case. Therefore, at this juncture, the confiscated currency cannot be redeemed to the account of M/s.James Mackintosh & Co. Pvt. Ltd. On payment of the dues by any of you, the confiscated amount can be claimed in refund either by M/s.J.M.Baxi & Co or the Master o the Vessel M.V.Aquamarine”. 4. After Ext.P5 was received, the Master of the vessel issued Ext.P6 again to the 1st respondent requesting that the redeemed amount of `82,70,050/- be returned to the second petitioner. There was no response to Ext.P6. It is in these circumstances the writ petition has been filed. 5. The contention raised in the writ petition is that the second petitioner having acted upon the authority of Ext.P2, remitted the amounts which was accepted, the respondents could not have declined refund to the second petitioner particularly in the light of Ext.P6 request made by the Master of the vessel also. 6. A statement has been filed on behalf of respondents 1 to 3. In the statement, in para 4,it has been stated thus:- “It is submitted that the 1st petitioner seeks to release the amount in question, which is in excess of INR 7500/-, to be released to the 2nd petitioner. It may be pointed out at this juncture that for such release of Indian Currency, a specific permission from the Reserve Bank of India (RBI) needs to be obtained in terms of Notification No.FEMA/6/RB-2000 dated 3rd May 2000. A true copy of the above WPC No. 23952/11 :4 : Regulations is produced herewith and marked as Ext.R1(A). It may be mentioned that the seized amount of Indian currency was ordered to be redeemed, subject to furnishing of the certificate from the RBI by the 1st petitioner or the 4th respondent. However, no such certificate has so far been furnished either by the 1st petitioner or the 4th respondent. Accordingly, the official respondents are unable to release the amount in issue to the petitioner or the 4th respondent”. 7. Thus, the absence of a certificate from the Reserve Bank of India, entitling the second petitioner to take the redeemed amount outside the country is the only reason that is relied on in the statement filed. The regulations of the RBI that are relied on have been produced as Ext.R1(A). Clause 7 of the Regulation provides for export of foreign exchange and currency notes. In Clause 7(2)(iii), it is stated that, any person may take or sent out of India currency in the safes of vessels or aircrafts which has been brought into India or which has been taken on board a vessel or aircraft with the permission of the Reserve Bank of India. 8. A reading of this provision therefore shows that the liability to obtain permission of the RBI is that of the person who intends to take currency from out of the country. A reading of Ext.P1 also shows that such a condition has been imposed by the 1st respondent. Thus the liability being that of the person who WPC No. 23952/11 :5 : wants to take currency from outside the country, such liability is that of the petitioners and that non production of such certificate cannot be a reason for respondents 1 and 2 to decline release of the redeemed amounts to the second petitioner if they are otherwise entitled to. In this case, the competence of the second petitioner to receive the amount on behalf of the first petitioner is not disputed in the statement filed. In that view of the mater and as the liability is of the second petitioner to obtain the certificate, non production of certificate cannot be a reason for declining release of the amount. 9. Ext.P5 is therefore unsustainable and is quashed. Respondents are directed to release the redeemed amount mentioned in Ext.P1 on the petitioners complying with the terms and conditions that are specified in Ext.P1. The amounts shall be released as expeditiously as possible, at any rate within 10 days of production of a copy of this judgment along with a copy of this writ petition. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp