2005 (98) ECC 298 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

South Zonal Bench -- Chennai

Shri P.G. Chakco, Member (J)

S. Sashi Chandra Gupta

Versus

CCE, Coimbatore

Appeal No. C/237/2003

[Arising out of Order-in-Original No. 02/Cus/2003 dated 13.6.2003 passed by the Commissioner of Customs & Central Excise, Coimbatore]

Final Order No. 1025/04, dt. 8.12.2004, Certified on 9.12.2004

Customs Act, 1962

Sections 108, 110 & 112 -- Smuggled goods -- Confiscation, Penalty -- Authenticity of the appellant's statement cannot be denied. It was in continuation of that statement that the appellant waived the show-cause notice and requested the Dy. Commissioner of Customs for early disposal of the case. The goods are of foreign origin. No proof whatsoever has been produced to establish licit nature of acquisition thereof by the party. Order of confiscation of such goods cannot be faulted. A penalty under Section 112 is concomitant with such confiscation. Having regard to the fact that the goods valued at Rs. 1.30 lakhs are becoming the property of the Govt. The penalty on the appellant stands reduced to Rs. 25,000. The impugned order is sustained with the modification.

Appeal disposed of

PRESENT :

Shri R. Balagopal, Consultant for the appellant.

Shri C. Mani, DR for the respondent.

Per : P.G. Chacko (Oral)

The appellant is aggrieved by a penalty of Rs. 50,000 imposed on him by the Commissioner of Customs under Section 112 of the Customs Act.

2. Examined the records and heard both sides.

3. Officers of the Customs Intelligence Unit, Coimbatore detected 3 packages weighing 123 kgs. in total covered by Air Way Bill No. 058 4065 2430 in the Import Goods Godown of the Air Cargo Complex, Coimbatore on 20.5.2003. They, further, found that the packages were consigned to one Shri S. Chandra Gupta, holder of Indian Passport No. C 23464/02. The goods were found to have been booked as "personal effects". As the passenger did not turn up to claim the goods, the goods were detained. On 24.5.2003, the appellant, Shri Sitaram Sashi Chandra Gupta, turned up at the Air Cargo Complex and, in his presence, the packages were opened, whereupon they were found to contain certain foreign origin goods, namely, cigarettes, cell phones, VCD player and assorted clothes. For want of permit or licence for import, the goods were seized under a mahazar under Section 110 of the Customs Act, based on a belief that the goods had been smuggled into India. Subsequently, the residential premises of the appellant was searched but no contraband or incriminating document was found. A statement was recorded from him on the same day (24.5.03) under Section 108 of the Customs Act, wherein he stated, inter alia, that he was holding Indian Passport No. Z-086019. He also stated his residential address as 22C, P.K.P Layout, Subramaniapuram, R.S. Puram, Coimbatore-2. The appellant further stated that a friend of his had purchased the above goods for him and that the goods were booked as unaccompanied baggage declared as "personal effects" under the aforesaid Air Way Bill. He also stated that his friend had mentioned his name and address as "S. Chandra Gupta P.P. No. C-23464/02, 12-C, PKR Lay out, Subramaniapuram, R.S. Puram, Coimbatore-2", which was recorded in the Air Way Bill. He also stated that he knew that it was a mistake to import goods in commercial quantity as unaccompanied baggage. He expressed his preparedness to pay appropriate Customs duty on the goods. In a subsequent letter addressed to the Dy. Commissioner of Customs, Coimbatore, the appellant stated as under:

"In continuation of my statement dated 24.5.03 regarding the seizure of goods such as Cigarettes, Cell Phones etc. I state that I do not require show cause notice in this case and the case may be decided early since the goods are in perishable nature."

The Commissioner of Customs, therefore, proceeded to adjudicate the case on the basis of available evidence. The present appeal is against his order of adjudication.

4. Ld. Consultant submits that the statement recorded from the appellant on 24.5.2003 under Section 108 of the Customs Act cannot be held against him as it was not signed by any officer of Customs. This submission is contested, Ld. DR submits that the statement dated 24.5.03 was never retracted and that its authenticity was never questioned by the appellant. It is for the first time in this appeal that the appellant is doubting the authenticity of his statement. Adverting to merits of the case, learned Consultant submits that the appellant has never claimed the goods and is, therefore, not liable to be penalised in relation thereto. The Passport Number shown in the Air Way Bill is different from the appellant's Passport Number. The address shown in the Air Way Bill is also not the same as the correct address of the appellant disclosed in his statement. For these reasons, according to consultant, the identity of the offender is not beyond doubt and any such penalty as imposed on the appellant is not justifiable. These submissions are also contested by learned DR on the strength of relevant findings recorded in the impugned order.

5. After careful examination of the submissions, I reject, at the outset, the preliminary objection raised by the consultant as regards the authenticity of the appellant's statement dated 24.5.2003. As a matter of fact, it was in continuation of that statement that the appellant waived the show-cause notice and requested the Dy. Commissioner of Customs for early disposal of the case. It is also significant to note that, in the said letter to the Dy. Commissioner of Customs, the appellant sought early disposal of the case in view of the perishable nature of the goods. This is enough to hold that appellant was interested in the goods. Therefore, I am unable to accept the plea that the appellant has ever disclaimed the goods. Admittedly, the goods are of foreign origin. No proof whatsoever has been produced to establish licit nature of acquisition thereof by the party. Order of confiscation of such goods cannot be faulted. A penalty under Section 112 is concomitant with such confiscation. Now, the only surviving question is whether the quantum of penalty imposed on the appellant is reasonable. It appears from the impugned order that the goods have been valued at Rs. 1.30 lakhs and a fine of Rs. 80,000 has been imposed for redemption of the goods. It has been assertively stated in the appeal memo that the appellant is now disclaiming the goods. He does not want to redeem them. Having regard to the fact that the goods valued at Rs. 1.30 lakhs are becoming the property of the Govt., I am of the view that the penalty should be reduced. Accordingly, the impugned order is sustained with the modification that the penalty on the appellant stands reduced to Rs. 25,000 (Rupees twenty-five thousand only). The appeal is disposed of.

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