2004 (97) ECC 628 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

South Zonal Bench -- Chennai

Shri P.G. Chacko, Member (J) and Shri Jeet Ram Kait, Member (T)

Ravindran Raj

Versus

Commissioner of Customs, Chennai

Appeal No. C/627/1998

[Arising out of Order-in-Original O.S. No. 22 of 1997 INT dated 21.4.98 passed by Commissioner of Customs, Chennai]

Final Order No. 539/2004, dt. 6.7.2004, Certified on 15.7.2004

Customs Act, 1962

Sections 114(i) and 113(d)(e) & (h) read with Section 67 of the Foreign Exchange Regulation Act, 1973 -- Offence of carrying foreign currencies/travellers cheques for financial consideration -- Confiscation of foreign currencies -- Penalty u/s 114(i) has been rightly imposed by the Commissioner. No reason to interfere with the quanta of penalty imposed on Shri Ravindran Raj.

Appeal is rejected

PRESENT :

None for the appellant.

Shri C. Mani, DR for the respondent.

Per : Jeet Ram Kait (Oral)

This is an appeal by one Shri Ravindran Raj, who has been imposed with a penalty of Rs. 50,000 under Section 114 (i) of the Customs Act, 1962 inasmuch as he was carrying foreign currencies/travellers cheques valued at Indian Rs. 28,37,020 (Rupees twenty eight lakhs thirty seven thousand twenty only) under Section 113 (d)(e) & (h) of the Customs Act, 1962 read with Section 67 of the Foreign Exchange Regulation Act, 1973.

2. None appeared on behalf of the appellant in spite of notices issued to him from time to time. He did not appear either personally or through his advocate. We, therefore, proceed to decide the case on merits.

3. The brief facts of the case are that on 17.9.97 at about 10.00 a.m. two independent witnesses were called upon by an Air Intelligence Officer of Chennai Air Customs at Anna International Airport with a request to present in the customs clearance area of the departure hall situated in the said airport and to witness the identification, questioning and search of the person of a passenger. The said Customs Officer, intercepted a passenger after he had completed immigration and customs formalities, in the presence of the witness, in the said departure hall and he was identified as Shri Manickam Ravindran Raj as per the Sri Lankan Passport No. M0018346 dated 29.10.96 issued at Colombo. Shri Ravindran Raj was also having Indian Airlines Boarding Pass for the flight No. IC573 dated 17.9.97 to go to Colombo vide Indian Airlines ticket No. 05862961232504. Therefore, the said passenger was taken to the visadex room near the abovesaid customs clearance area alongwith the said witnesses and with his hand luggage for a detailed examination of his baggage and search of his person. The said Customs Officer, in the presence of the witnesses, question the said passenger as to whether has was in possession of any contraband such as narcotics/foreign currency/Indian currency to which he replied in the negative. Thereafter, the said Customs Officer, in the presence of the witnesses, searched the person of the said passenger thoroughly which resulted in recovery of neither any contraband nor any incriminating documents except two luggage claim tags bearing No. IC704594 and IC704595 issued by Indian Airlines and a boarding pass from Mumbai to Chennai by Indian Airlines Flight No. IC972 issued in the name of Manickam/PRMR.

Thereafter, in the presence of the witnesses and the said passenger, his had (sic) baggage was opened and examined and it was found to contain lady's wearing apparel. Then, the said Customs Officer escorted Shri Ravindran Raj alongwith the witnesses to the baggage make up area from where two checked-in baggage with the aforesaid tag Nos. of the said passenger were retrieved and brought to the said visadex room for a detailed examination. The said Customs Officer, in the presence of the witnesses and Shri Ravindran Raj, opened and examined the above-said two checked-in baggage of the said passenger and they were found to contain only lady's wearing apparel. As the said Customs Officer noticed the said passenger was very nervous and his answers were not satisfactory, the said Customs Officer, in the presence of witnesses, repeatedly questioned the passenger after which he admitted that he had kept concealed one cylindrical bundle, containing foreign currency inside his body through rectum and 27 small capsules containing foreign currencies inside his stomach by way of swallowing and volunteered to eject them in the natural way in due course. Thereafter, the said Customs Officer took the said passenger alongwith the said witnesses to a nearby toilet, where, in the presence of the witnesses and the said Customs Officer, Shri Ravindran Raj rejected 3 small white colour capsules and one white colour cylindrical bundle wrapped with condoms, cleaned himself, brought them to the said room. Then the said three small capsules and cylindrical role covered with condoms were cut opened and examined, one by one in the presence of the witnesses and the said passenger Shri Ravindran Raj and they were found to contain 1500 Deutsche Marks, 3000 Deutsche Marks; 2500 US $ in travellers cheques and 30000 US$ travellers cheque respectively as detailed in an annexure to the mahazar. The said Customs Officer questioned him as to whether he was having any valid permit/licence to export the above-said assorted foreign currencies and travellers cheques in foreign currency out of India to which he replied in the negative. The said passenger also admitted in the presence of witnesses that he had kept concealed the foreign currency inside his body by swallowing to avoid detection by customs and did not declare the same to the Customs Officials even when he was specifically questioned. As the said passenger was not having any valid permit/licence issued by the competent authority to export the said 4,500 Deutsche Marks and 32500 US $ in travellers cheques and as he attempted to smuggle the same out of India without declaring to the customs and by way of concealment inside his body through his rectum and swallowing, the Customs Officer seized the same under a mahazar for taking action under the provision of the Customs Act, 1962 read with Foreign Exchange Regulation Act, 1973 alongwith the white condoms, black colour adhesive tapes in bits and pieces which were used to wrap the said foreign currencies and travellers cheques, for further action under the Customs Law. In his voluntary statement given before the Customs Officer on 17.9.97 at Chennai Anna International Airport, Shri Ravindran Raj after furnishing his personal and family details has stated that since his income which he earned through building work was insufficient and as his friend told him that if he brings goods from India and sells at Colombo he can earn good profit and hence he applied and got a passport No. M0018346 dated 29.10.96 and by using this passport he visited Chennai often, and he used to bring cloves and cigarettes from Colombo, sell them at Chennai Burma Bazaar and while going to Colombo he used to take textiles and sell them at Colombo and earned Rs. 2,000 per trip and also sold various items at Mumbai on the advice of his friend Shri Farook who used to arrange a broker to deliver various items at his room itself. He also had admitted that he committed this offence knowingly for the sake of Srilankan Rs. 5,000 and requested for taking a lenient view. He was issued a show cause notice and the matter was adjudicated by the Ld. Commissioner who found that Shri Ravindran Raj had agreed to smuggle the foreign currencies/travellers cheques for some monetary consideration. He has a large family and he is a Srilankan without any local support. It was in this background that the Ld. Commissioner after confiscating absolutely the seized foreign currencies/travellers cheques valued at Rs. 28,27,020 under Section 113 (d) (e) & (h) of the Customs Act and imposed a penalty of Rs. 50,000 only on Shri Ravindran Raj under Section 114 (i) of the Customs Act.

4. Heard Ld. DR Shri C. Mani who submits that this passenger was carrying foreign currencies in his rectum as well as the same was swallowed in his stomach to avoid any detection of the foreign currency. Therefore, the offence was fully proved against Shri Ravindran Raj. Moreover, Ld. Commissioner has already taken a lenient view keeping in view that he has a large family and was a Srilankan citizen without any local support and he was in jail already from the time of seizure of the contraband goods. Ld. DR therefore submitted that already a lenient view has been taken against the appellant and the order of the Ld. Commissioner of Customs (Air Port) is required to be sustained.

5. We have examined the records and heard the DR. The appellant has admitted that he had committed the offence of carrying foreign currencies/travellers cheques for financial consideration. Therefore, he has made foreign currencies valued at Rs. 28,37,020 liable for confiscation and he has also made himself liable for penalty under Section 114 (i) of the Customs Act, 1962. Ld. Commissioner has therefore rightly imposed a penalty of Rs. 50,000 on Shri Ravindran Raj. Ld. Commissioner has already taken a lenient view in the matter by imposing a penalty of Rs. 50,000 and we do not find any reason to interfere with the quanta of penalty imposed on Shri Ravindran Raj. We, therefore, affirm the order of the Ld. Commissioner and reject the appeal filed by the appellant Shri Ravindran Raj.

The operative portion of the order was pronounced in open court on 6.7.2004. Ordered accordingly.

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