2005 (98) ECC 308 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

South Zonal Bench -- Chennai

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

S. Rajaji

Versus

Commissioner of Customs, Chennai

Appeal No. C/644/1998

[Arising out of Order-in-Original No. 72/98 - CAU dated 1.5.98 passed by Commissioner of Customs, Chennai]

Final Order No. 540/2004, dt. 6.7.2004, Certified on 15.7.2004

Confiscation & Penalty (Customs)

Customs House Agent -- Smuggle foreign currency -- Traveller's cheque -- Accused alongwith company responsible for abetting the attempt to smuggle foreign currency out of the country. Neither an authorised CHA nor was qualified to handle customs transactions. Accused a regular CHA and was dealing in the customs matters without any proper authorisation. Therefore, accused had full knowledge and had helped the exporter for completing the customs formalities. Hence, his act resulted in the absolute confiscation of the foreign currencies and travellers cheques and penalty u/s 114 r/w Sec. 113(d) (e) and (h) of the Customs Act.

PRESENT :

None for the appellant.

Smt. Bhagya Devi, SDR for the respondent.

Per : Jeet Ram Kait

This appeal has been filed by the appellant Shri S. Rajaji against the order of Commissioner who has absolutely confiscated the assorted foreign currencies and travellers cheques totally valued at Rs. 2,73,42,420 (Rupees two crores seventy three lakhs forty two thousand four hundred and twenty only) under Section 113 (d)(e) and (h) of the Customs Act, 1962 read with Section 67 of FERA, 1973 and has also imposed a penalty of Rs. 25,000 on S. Rajaji under Section 114 of the Customs Act, 1962.

2. None appeared for the appellant in spite of notices and therefore we proceed to decide the case on merits.

3. The brief facts of the case are that on 3.9.95 at 15.45 hours 18 baskets of live and crabs, covered under Shipping Bill No. 970472 dated 1.9.95 filed by M/s. Fine Food Packers, No. 26-32, GA Road, Madras 21, through M/s. N. Taylor, Madras - 1, R - 286 Customs House Agent, for export to Singapore by Air were lying at Indian Air Lines Security Clearance area. Out of 18 baskets, which were made of bomboo, Indian Air Lines security officials noticed six brown paper packets among the live crabs in basket No. 7, and they informed to Customs immediately, 17 baskets, were opened and examined in the presence of witnesses, Mr. T.H. Aslam Basha, Clearing Clerk of the Customs House Agent, M/s. N. Taylor, Mr. S. Siva Kumar, Security Guard, Indian Airlines and Mr. R.S. Rajendran, Security Guard, Airport Authority of India and in the presence of Customs and Directorate of Revenue Intelligence Officers and it was found to contain live mud crabs as declared in the shipping bill. Basket No. 7 under Airway Bill No. 0583481871112 origin FFP/MAA destination on HA/SIN and having mark as R.S. opened and examined and it was found to contain 6 brown paper packets amongst the live crabs. The said six brown paper packets were opened and examined in the presence of witnesses and in the presence of above said persons. On examination of the same which resulted in the recovery of assorted foreign currencies and travellers' cheque totally equivalent to Indian Rs. 2,73,42,420 Hand written slips all showing numbers 786 on the top, and dated 3.9.95, bearing names `Bulls' and `R.Boy' (Written in tamil) in two of the slips and a sign "#" on the third slip were also recovered from the above mentioned brown paper packets, containing foreign currencies and travellers cheques. On a reasonable belief that the above-said foreign currencies and travellers cheques were attempted to be smuggled out of India, by concealment in contravention of the provisions of Customs Act, 1962, and Foreign Exchange Regulation Act, 1973, the above-said foreign currencies and travellers cheques were seized under a mahazar for action under Customs Act, 1962 read with Foreign Exchange Regulation Act, 1973. All the 18 baskets, crabs used for concealing the aforesaid foreign currencies and travellers cheques, brown paper packets used as packing material of the above-said foreign currencies and travellers cheques and the three hand-written slips recovered from the packets containing foreign currencies and travellers cheques and the cargo tags were also seized for investigation under the Customs Act, 1962, under the same mahazar. After completion of investigation, etc., the case was adjudicated by the Commissioner of Customs who confiscated absolutely the assorted foreign currencies and travellers cheques totally valued at Rs. 2,73,42,420 under Section 113 (d) (e) and (h) of the Customs Act, 1962 read with Section 67 of the FERA, 1973.

4. Ld. SDR Smt. Bhagya Devi submitted that the appellant has been imposed a penalty of only Rs. 25,000 whereas he was involved in the foreign currency/travellers cheques valued at Rs. 2.73 crores. She therefore submitted that a lenient view has already been taken by the Commissioner in spite of the fact that he had admitted his offence and had requested for a lenient view in the matter which the Ld. Commissioner has decided the case and has imposed a nominal penalty of Rs. 25,000 only on the appellant.

5. We have examined the records and heard the SDR. We find that the appellant, S. Rajaji, owner of M/s. Oyes Shipping is equally responsible for abetting the attempt to smuggle foreign currency out of the country. He was not an authorised CHA and therefore he was not qualified to handle customs transactions. However he had managed to obtain the signature of a regular CHA and was dealing in the customs matters without any proper authorisation. Therefore it was rightly concluded by the Ld. Commissioner that S. Rajaji had full knowledge and had helped the exporter for completing the customs formalities. Ld. Commissioner has rightly held that the charges against the appellants have been proved. We find that the appellant's action has resulted in the absolute confiscation of the foreign currencies and travellers cheques valued at over Rs. 2.73 crores under Section 113 (d) (e) and (h) of the Customs Act and he is liable for penalty under Section 114 of the Customs Act. As regards the quanta of penalty, the Ld. Commissioner has imposed a penalty of Rs. 25,000 which we find reasonable. We therefore do not find any reason to interfere with the order of imposition of penalty of Rs. 25,000 on S. Rajaji and the order of the Commissioner of Customs imposing a penalty of Rs. 25,000 on S. Rajaji, the appellant, is sustained. We, therefore, reject the appeal filed by the appellant.

The operative portion of the order was pronounced in Open Court on 6.7.2004.

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