2005 (98) ECC 227 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

South Zonal Bench -- Chennai

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

G. Jayachandran

Versus

Commissioner of Customs, Chennai

Appeal No. C/309/1998

[Arising out of Order-in-Original O.S. No. 10/97 - RD dated 27.8.97 passed by Commissioner of Customs, Chennai]

Final Order No. 541/2004, dt. 6.7.2004, Certified on 15.7.2004

Confiscation & Penalty

Carrier -- Foreign currency without permit -- Accused submitted before the lower authority that since had incurred lots of expenses in connection with his trip to Sharjah he had agreed to carry the foreign currencies. He was not aware of the contents of the cardboard carton including the foreign currencies. Accused did not declare the foreign currencies to the customs nor he claimed the ownership of the foreign currencies nor has he produced any valid permit, the foreign currencies are liable for absolute confiscation and accused liable for penalty. Accused is a victim of circumstance and was already under detention COFEPOSA Act. Penalty reduced.

PRESENT :

Shri Satish Sundar, Adv. for the appellant.

Shri A. Jeyachandran, DR for the respondent.

Per : Jeet Ram Kait

This appeal is by one Shri G. Jayachandran, holder of Indian Passport No. A325687 issued on 23.10.90 at Tiruchirapalli, a passenger bound for Sharjah via Muscat by Gulf Air Flight No. GF 069 dt. 14.2.97 vide Ticket No. 072 4409 774 216 along with his checked-in baggage, a cardboard carton, having baggage tag No. GF 099207 was intercepted while he was proceeding for security check in the departure hall of the Chennai Airport after completion of immigration and customs formalities, by the Officers of Air Intelligence that attached to Chennai Customs on suspicion. On examination of person and his baggage he was found to contain the foreign currencies which were seized as detailed below:

1. | Sterling Pounds | - | 4785
2. | US $ | - | 3535
3. | Saudi Riyal | - | 351848
4. | UAU Dirhams | - | 83905
5. | Singapore $ | - | 1536
6. | Deutche Mark | - | 170
7. | Qatar Riyal | - | 14520
8. | Kuwait Dinars | - | 2762
9. | Netherland Guilder | - | 200
10. | French Franc | - | 1500
11. | Malaysian Ringet | - | 7047
12. | Oman Riyal | - | 6875
13. | Bahrain Dinar | - | 1347.5
14. | Swiss Franc | - | 200
15. | Brunei Dollars | - | 70

The Indian equivalent of the above foreign currencies is valued at Rs. 57,21,401 (Rupees fifty seven lakhs twenty one thousand four hundred and one only). The matter was adjudicated by the Ld. Commissioner of Customs (Air Port) who confiscated absolutely the foreign currencies valued at Rs. 57,21,401 under Section 113 (d) (e) & (h) of the Customs Act, 1962 read with Section 67 of the FERA, 1973. The Ld. Commissioner has also confiscated absolutely the two lungies and four bed sheets alongwith the adhesive tapes used for concealment of the foreign currencies under section 119 of Customs Act, 1962. He also imposed a penalty of Rs. 25,000 on the appellant, Shri G. Jayachandran, under Section 114 of the Customs Act, 1962.

2. Appearing on behalf of the appellant Shri G. Jayachandran, Shri B. Satish Sundar, Advocate after narrating the facts of the case submitted that in view of the fact that the appellant has undergone punishment under COFEPOSA Act and was also convicted for carrying foreign currency, he requested for a lenient view in the matter and wanted the personal penalty of Rs. 25,000 under Section 114 of the Customs Act on Shri G. Jayachandran to be set aside or at least to reduce further to some very nominal amount as the appellant being a very small and poor person who is not able to pay this penalty amount. He also submitted that the appellant was involved in the case for the first time and therefore a lenient view may be taken in the matter.

3. Heard Ld. DR Shri G. Jayachandran who submits that a very lenient view has already been taken by the Ld. Commissioner who has imposed a very nominal penalty of Rs. 25,000 on the appellant whereas he was carrying foreign currency valued at Rs. 57,21,401 which was later confiscated absolutely under the Act ibid. He therefore submitted that there is no case for further reduction of the penalty amount.

4. We have considered the submission made by both sides and find from the records of the case that neither Shri G. Jayachandran nor Shri Abdul Hakeem had replied to the show cause notice and in fact the show cause notice sent to Shri Abdul Hakeem had returned undelivered with the postal endorsement "Left India". Shri G. Jayachandran however appeared for personal hearing before the Ld. Commissioner who had submitted that he was not aware that Shri Abdul Hakeem had kept concealed the foreign currencies in the box given to him and that he was innocent. Before the original authority he had stated that Shri Abdul Hakeem had handed over cardboard carton containing some eatables and clothes to be handed over the same to his brother at Sharjah who had also informed Shri G. Jayachandran that alongwith the above articles he had kept foreign currencies of different countries and that if he handed over the same to his brother, the latter would give 1000 dirhams. He had further submitted before the lower authority that since had incurred lots of expenses in connection with his trip to Sharjah he had agreed to carry the foreign currencies. Therefore his contention at the time of personal hearing before the Ld. Commissioner was that he was not aware of the contents of the cardboard carton including the foreign currencies and this submission was not found acceptable by the Ld. Commissioner and he had also not retracted the statement given by him. From the case records and various statements it is obvious that Shri Abdul Hakeem had arranged the booking of air ticket for Shri G. Jayachandran and he had given cardboard carton from which the contraband foreign currencies valued at Rs. 57,21,401 was recovered. The foreign currencies under seizure had been disowned by Shri G. Jayachandran and he had acted as a mere carrier. In view of the above facts and circumstance, since he did not declare that foreign currencies to the customs nor he claimed the ownership of the foreign currencies, nor has he produced any valid permit, the foreign currencies are liable for absolute confiscation and Shri G. Jayachandran liable for penalty. We are in agreement with the findings of the Ld. Commissioner. We also find that the Ld. Commissioner had observed that Shri G. Jayachandran is a victim of circumstance and was already under detention under the provisions of COFEPOSA Act, 1974 and he did not have regular income and has been earning his livelihood as coolie. He had also observed that his abortive trip to Sharjah was for the sake of employment. Keeping all the facts in view, Ld. Commissioner had taken a very lenient view and had imposed a penalty of only Rs. 25,000 on Shri G. Jayachandran under Section 114 of the Customs Act. We, therefore, do not find any reason to interfere with the order of the Ld. Commissioner and we uphold the same and sustain the penalty of Rs. 25,000 imposed on Shri G. Jayachandran by rejecting the appeal.

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