Custom, Excise & Service Tax Tribunal
Peringatil Hamza vs Cc (Airport) on 18 July, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. C/65/08 Mum
(Arising out of Order-in-Original No. COMMR/PVRADJN/12/2007-08 dated 24.10.07 passed by the Commissioner of Customs, Airport, Mumbai)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Peringatil Hamza
:
Appellant
Versus
CC (Airport)
Mumbai
Respondent
Appearance Shri Anil Balani, Advocate For appellants Shri M.S. Reddy, Dy Commissioner (A.R.) For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 18.07.2014 Date of Decision : 18.07.2014 ORDER NO.
Per Ashok Jindal The appellant is in appeal against the impugned order wherein the Indian Currency smuggled outside India was seized and absolutely confiscated and a penalty of Rs.2 lakhs has been imposed on the appellant.
2. Brief facts of the case are that on intelligence, the appellant was intercepted at Sahara Airport on 08.12.2004 and during the search, Indian currency of Rs.24,17,500/- was found with the appellant which was neither declared nor permitted by RBI for export. Therefore, the said Indian currency was confiscated and proceedings were initiated against the appellant. During the proceedings, statements of the appellant and other persons were recorded. On the basis of the statements, the adjudicating authority has arrived at a decision that the currency does not belong to the appellant therefore the same was absolutely confiscated and a penalty of Rs.2 lakhs has been imposed. Aggrieved by the said order, the appellant is before us.
2.1 The matter was referred to the Larger Bench of this Tribunal to decide the issue that in case a person attempted to export Indian currency outside India without permission of RBI more than Rs.5,000/- and Rs.10,000/-, in that case whether absolute confiscation is correct or Indian currency can be redeemed by imposition of redemption fine and penalty. The said reference has been answered by the Larger Bench of this Tribunal of this Tribunal holding that in case a person attempted to export Indian currency outside India without permission of RBI more than Rs.5,000/- or Rs.10,000/- in that case the Indian currency can be absolutely confiscated and it is discretion of the proper officer in the facts and circumstances of the case be allowed to redeem on payment of redemption fine and imposition of penalty. Therefore, the matter has come up before me for disposal.
3. Heard both sides.
4. The learned Counsel for the appellant submits that the appellant initially stated that the currency belongs to one Shri P. Muhammed, therefore the statement of Shri P. Muhammed was recorded on 02.02.2005 wherein Shri P. Muhammed has stated that the currency does not belong to him and he has nothing to do with the currency. Thereafter, the statement of the appellant was recorded on 02.05.2005 wherein the appellant has explained the source of acquisition of currency and purpose of export of the currency outside India but the adjudicating authority has not considered the explanation given by the appellant and have not given prudence to the statement of Shri P. Muhammed and held that the currency does not belong to the appellant. The adjudicating authority has also failed to prove that if the currency does not belong to Shri P. Muhammed then to whom the currency belongs. Therefore, the findings of the adjudicating authority that as per the initial statement given by the appellant the currency does not belong to him is not correct and absolute confiscation of the currency has been done only on this premise which is totally wrong therefore, absolute confiscation of the currency is arbitrary therefore, the option of the redemption of currency be granted.
5. On the other hand, the learned A.R. opposes the learned Counsel and submits that although the appellant in his statement on 02.05.2005 has admitted that the currency belongs to him but he has failed to prove that how he has acquired the currency whatever he has stated is fabricated. Therefore, the adjudicating authority has rightly held that the currency neither belongs to the appellant nor he is owner of the same.
6. Considered the submissions made by both sides.
7. The general principle is that on whose possession the goods are found then that person is to be the owner of the goods. In this case, the currency has been recovered from the possession of the appellant and the appellant claims the owner of the goods and the adjudicating authority is holding that he is not the owner of the goods. Therefore, the onus lies on the adjudicating authority to find out who is the owner of the goods. As he has not arrived at a decision as who is the actual owner of the goods, therefore, in all probability the appellant is the owner of the goods as the currency has been recovered from his possession on 08.12.2004. Further, the absolute confiscation has been done by the adjudicating authority holding that the appellant is not the owner of the goods is incorrect in the light of the findings here-in above. Therefore, in these circumstances, I hold that the absolute confiscation of the currency is not warranted. Accordingly, I hold that the Indian currency can be released to the appellant on imposition of redemption fine and penalty.
8. Considering the fact that the appellant has suffered for 9= years and the quantum of currency is about Rs.24 lakhs which was seized on 08.12.2004 and also has made expenses on litigations to get the currency released therefore, quantum of redemption fine is determined to 10% of the currency seized. I also find the penalty of Rs.2 lakhs is appropriate.
8.1 In these circumstances, I direct the adjudicating authority to release the currency seized on payment of redemption fine of 10% of currency seized and on payment of penalty of Rs.2 lakhs. Appeal is disposed of in the above terms.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
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