Customs, Excise and Gold Tribunal - Delhi
S/Shri Sunil Gulati & J.P. Singh vs Commissioner Of Customs, New Delhi on 4 May, 2001
ORDER K.K. Bhatia, Member (T)
1. These appeals are filed by S/Shri Sunil Gulati and Joginder Pal Singh (J.P. Singh) against the Order-in-Original dt. 31.3.2000/10.4.2000 passed by Commissioner of Customs (General), New Customs House, New Delhi, in which inter alia a penalty of Rs.5 lakhs each on these two appellants has been imposed under Section 112 and Section 114 (i) of the Customs Act, 1962. The brief facts of the case are that the DRI Officers, Delhi Zone intercepted two persons at New Delhi Railway Station on 27.4.97. On enquiry, it was learnt that their names were Sunil Gulati and Chaman Lal. It was further learnt that Shri Sunil Gulati was the son-in-law of Shri Chaman Lal and he had come to the Station to leave his father-in-law who was going to Calcutta. These two persons were also carrying a brief case. On search of the brief case, it revealed that the foreign currency of different denominations collectively valued at Indian Rs. 41,22,050/- was concealed in the false bottom of it. On search of Shri Sunil Gulati, Maruthi Zen Car key with parking slip was also recovered from him. Shri Sunil Gulati said that it was the key of this friend's Maruti Zen Car bearing Regn. No. DL-4CE-8924, in which he had come to the station and the same was parked in the parking area. Shri Sunil Gulati further deposed that the said car was used for transporting smuggled gold in the past and the said currency was the sale proceeds of smuggled gold which was to be taken to Calcutta by Shri Chaman Lal. Shri Chaman Lal in his statement deposed that he had no knowledge of the concealment of the foreign currency. The brief case and the Maruti Zen Car were accordingly seized. Shri Sunil Gulati in his statement dt. 27/25.4.97 admitted the recovery of the above said goods and that he attempted to transport the foreign currency to Calcutta through his father-in-law.
Shri Chaman Lal also in his statement dt. 27/28.4.97 corroborated the version of Shri Sunil Gulati deposed in his statement. He however, denied any knowledge about the concealment of the foreign currency in the brief case and illegal activities relating to it. On further enquiry, it was learnt that the Maruti Zen Car was owned by one Shri J.P. Singh who sent a letter dt. 29.5.97 addressed to the DRI authorities in which he requested for release of his car. He further submitted that Shri Sunil Gulati from whom the car was seized was one of the Directors of his firm M/s. Hindtech (P) Ltd. and also the Director of the firm M/s. Alag Intco Hotels (P) Ltd. Delhi, his relationship with whom was that of the Co-Director in the same Company. He further, submitted that he had given the car to Shri Sunil Gulati on 18.4.97 for safe keeping, as he was going out of station. A further statement was recorded from him on 28.6.97, in which he deposed that he was in the business of sale/purchase of cars on commission basis, that he had stated that Company, M/s. Alag Intco Hotels (P) Ltd. which was running a restaurant in the name of 'Gulnar' in which, Shri Sunil Gulati and Sri J.P. Singh were partners of 25% share. He however, denied any knowledge about the foreign currency seized on 27.4.97 from Shri Sunil Gulati.
2. The proceedings were initiated against S/Shri J.P. Singh and Sunil Gulati for violation of para 15.2 of the EXIM Policy - 1997-2000, clause (h) of Rule 3 (i) of the Foreign Trade (Exemption from Application of Rules in Certain Cases) Order, 1993, corresponding to Notfn. No. 171/94-Cus. dated 30.9.1994 and clause 8 (i) and 13 (i) of the Foreign Exchange Regulation Act, 1973 read with clause (d) of Sub-section (22) of Section 2 of the Customs Act, 1962 and Section 111 (d) of the Customs Act, 1962. These proceedings culminated in the Commissioner (Customs) passing an Order dt. 10.4.2000, in which she ordered absolute confiscation of the foreign currency valued at Rs.41,22,050/- recovered from Shri Sunil Gulati under Section 103 (d) and Section 121 of the Customs Act, 1962. The Commissioner further ordered for the confiscation of the seized Maruti Zen Car but gave an option to redeem the same on payment of a fine of Rs. 3 lakhs. She ordered absolute confiscation of the brief case and imposed a penalty of Rs. 5 lakhs each on Shri J.P. Singh and Shri Sunil Gulati under Section 112 (d) and Section 114 (1) of the Customs Act, 1962.
3. The present appeals and Stay Petitions are filed by the aforestated Shri J.P. Singh and Shri Sunil Gulati. The matters are listed today for hearing the Stay Petitions of the appellants. Shri Naveen Mullick, Advocate appearing for the appellants submitted that there is no tenable reason for imposing the penalty on the two appellants, as there is no Act of commission which would call for imposition of penalty on them. It is further stated that the burden even as per Section 123 of the Customs Act, 1962 lies on the Department to prove that the goods are smuggled as also the foreign currency which has been seized is not smuggled goods and therefore, the Department has not discharged the onus caused on it. It is further submitted that Sections 110, 112 and 114 of the Customs Act, 1962 cannot be attracted, as there is no evidence of smuggling of gold the sale of which allegedly resulted into the receipt of the foreign currency. It is therefore, contended that the order passed by the Commissioner of Customs is liable to be set aside. Shri S. Kumar, JDR appearing for the respondents has reiterated the findings arrived at in the order of Commissioner.
4. I have considered the submissions made before me. As already stated, the matters are listed for considering the Stay Petitions filed by the appellants. The seizure of foreign currency of more than Rs. 41 lakhs from the possession of Shri Sunil Gulati is not in dispute. Shri Sunil Gulati has also given inculpatory statement deposing that the same was the sale proceeds of smuggled gold. In his statement, he has given graphic details as to how he fell into the act of acquiring the smuggled gold and the sale of the same. The statement given by him remains unretracted to this date. However, the same could not be said about the appellant, Shri J.P. Singh. The charges confirmed on him only relate to the Maruti Zen Car owned by him which was seized from the possession of Shri Sunil Gulati. Shri J.P. Singh in his statement deposed that he had given the said car to Shri Sunil Gulati for safe keeping, as he was going out of station. These facts are not controverted in the order of Commissioner. There is no other evidence on record against Shri J.P. Singh of his handling of the contraband foreign currency. Consequently, whereas Shri Sunil Gulati has not made out a prima facie case in his favour, there is no evidence (prima facie) against the appellants - Shri J.P. Singh calling for imposition of penalty on him. There is no plea of any financial hardship by Shri Sunil Gulati before me. I, accordingly, direct Shri S. Gulati to make a deposit of Rs. 2.5 lakhs (Rs. two lakhs and fifty thousand) as part of the penalty on or before 30.6.2001. On making such deposit, the deposit of balance of the penalty amount shall stand waived and its recovery stayed till the disposal of the appeal. The pre-deposit of the penalty imposed on the appellant, Shri J.P. Singh in the facts and circumstances of the case is waived and its recovery stayed.
5. The matter will be called for reporting compliance on 2.7.2001.
(Announced in the Court)