Custom, Excise & Service Tax Tribunal
Rajkumar Bhojwani vs Commissioner, Customs-Jaipur I on 9 May, 2023
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
PRINCIPAL BENCH - COURT NO. II
Customs Appeal No. 50017 of 2023
(Arising out of Order-in-Appeal No.52(SM) CUS/JPR/2022 dated 05.04.2022 passed by
the Commissioner (Appeals), Central Excise & CGST, Jaipur.]
Rajkumar Bhojwani Appellant
House No. C-15, Kirti Nagar,
Foy Sagar Road, Ajmer
VERSUS
Commissioner, Customs-Jaipur I Respondent
NCR Building, Statue Circle, C-Scheme, Jaipur, Rajasthan-302005 APPEARANCE:
Ms. Priyanka Goel, Advocate for the appellant.
Mr. Gopi Raman, Authorised Representative for the respondent CORAM:
HON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) FINAL ORDER NO. 50694/2023 DATE OF HEARING: 09.05.2023 DATE OF DECISION: 09.05.2023 ANIL CHOUDHARY:
Heard the parties.
2. The issue involved is whether the appellant have been rightly imposed with penalty under Section 114(i) & 114AA of the Act.
3. Brief facts are as follows:
3.1 Two persons namely; (i) Shri Bharat Hemrajani s/o Shri Rajesh Kumar Hemrajani, resident of House No. 57, Gali No. 4, Kishanganj, Beawar, Ajmer (Rajasthan) having Indian Passport No. K-2384071 and 2 C/50017/2023
(ii) Shri Manoj Phulwani s/o Shri Lekhraj Phulwani, resident of 1/24, Hari Niwas, Kishanganj, Beawar, Ajmer (Rajasthan) having Indian Passport No. Z-4100634, were going to Dubai from Jaipur on 06.08.2018 by Air India Express Flight No. IX 195.
3.2 They were intercepted by the Customs Officers and on examination of their person and baggage search, the officers found they both are jointly carrying Foreign & Indian Currencies of value totalling INR 38,16,029/- (Foreign Currency value in INR 37,90,488/- and Indian Currency Rs, 25,541/-), in their baggage & wallets.
3.3 The Customs officials inquired from them whether they are carrying any legal documents or permission as required under provisions of Section 3 & 4 of Foreign Exchange Management Act, 1999 read with regulation 3,5 and 7 of the Foreign Exchange Management (Export and Import of Currency) Regulations, 2015, which was denied by them.
4. The (noticee no. 1)- Shri Bharat Hemrajani in his statement dated 06/07-08-2018 tendered under Section 108 of the Customs Act, 1962 inter alia stated that he has been running a tyre shop namely M/s Mahadev Tyres, alongwith his brother Shri Neelesh in Beawar and earned approximately Rs.50,000/- per month and having mobile no. 98296-03408; that he was going to Dubai from Jaipur by Air India Express flight No. IX-195 on 06-08-2018 alongwith his co-passenger Shri Manoj Phulwani, resident of 1/24, Hari Niwas, Kishanganj, Beawar, Ajmer, having passport no. Z-4100634. On being found suspicious the Customs Officer held him alongwith his co-passenger and inquired about having any dutiable or prohibited or restricted goods in his baggage, he had denied having such goods. Thereafter, the officers conducted 3 C/50017/2023 thorough examination of his baggage. He categorically admitted the recovery of the Foreign & Indian Currency valued in IN 35,31,368/- (i.e. Foreign currency valued in INR 35,25,548/- & Indian Rs.5,820/-) recovered from his baggage & brown purse on 06-08-2018. He also admitted that he was not having any legal documents or approval/ permission of Reserve Bank of India in respect of the Foreign Currency. He further stated that he had concealed the said Currency notes in his purse (Marked "Wonder") and also kept in the 4 sweets boxes (on the upper side of the boxes marked "Jh jk/ks jk/ks fe"Bku Hk.Mkj" and in the lower side of the sweets boxes marked "lsUnMk jksM eaxy Vkoj ds ikl] C;koj-305 901"
which were kept in a black colored bag (marked "TVS TYRES"), that he did not declare the same to the customs authorities with intention to smuggle the same out of India illegally; that these currency notes were given to him by co-passenger i.e. noticee no. 2 Shri Manoj Phulwani; that he would hand over the same to Shri Manoj Phulwani after reaching Dubai; that further Shri Manoj Phulwani would hand over the same to Shri Girish Bhojwani; that in greed of reimbursement of expenditure of tour of Dubai, he had agreed for carrying the Foreign & Indian Currency illegally.
5. The noticee no. 2, Shri Manoj Phulwani in his statement dated 07-08-2018 tendered under Section 108 of the Customs Act, 1962 inter alia stated that he is running a travel agency in name and style of M/s Vinayak Tour & Travels in Beawar for last 2 years and earning approximately Rs. 50,000/- per month and having Mobile No. 87690- 75455 of BSNL; that he had visited abroad many times; the last visit was in the month of May, 2017; that he was going to Dubai from Jaipur
4 C/50017/2023 by Air India Express flight No. IX-195 on 06-08-2018 alongwith his co- pasanger Shri Bharat Hemrajani, resident of House No.-57, Gali No.-4, Kishanganj, Beawar, Ajmer, having Passport No. K-2384071. On being found suspicious the Customs Officer held him alongwith his co- passenger and inquired about having any dutiable or prohibited or restricted goods in his baggage, he had denied having such goods. Thereafter, the officers conducted thorough examination of his baggage. He categorically admitted the recovery of the Foreign Currency valued in INR 2,64,940/- and Indian Currency of Rs.19,721/-, recovered from his black coloured purse on 06-08-2018. He also admitted that he was not having any legal documents or approval/ permission of Reserve Bank of India in respect of the Foreign Currency. He further stated that he had concealed the said Currency notes in his black colored purse (Mark on it "CM"); that he did not declare the same to the customs with an intent to smuggle the same out of India illegally. On being enquired about Foreign Currency, which was recovered from Shri Bharat Hemrajani, he categorically admitted that the same was collected by him from Shri Rajkumar Bhojwani; that Shri Bharat Hemrajani will hand over the same to him after reaching Dubai; that he will hand over the same to Shri Girish Bhojwani, brother of Shri Rajkumar Bhojwani at Dubai. He admitted that in greed of money and free tour of Dubai, he had agreed for carrying the said Foreign & Indian Currency illegally.
6. In the instant case, the aforementioned persons were found illegally carrying Foreign & Indian Currencies valued in INR 38,16,029/- (Foreign currency valued in INR 37,90,488/- and Indian Currency Rs. 25,541/-) to Dubai from International Airport, Jaipur on 06-08-2018.
5 C/50017/2023 Thus, they appeared to have been involved in the offence of illegally carrying of Foreign & Indian Currencies totally valued in INR 38,16,029/- out of the country.
7. For the offence committed by Shri Bharat Hemarajani and Shri Manoj Phulwani, they were arrested under the provisions of Section 104 of the Customs Act, 1962 under Arrest Memos dated 07-08-2018 with the permission of the competent authority on 07-08-2018 after following proper procedure and were produced before the Hon'ble Economics offence Court, Jaipur on 07-08-2018 and the Hon'ble court had granted bail to both Shri Bharat Hemarajani and Shri Manoj Phulwani.
8. Follow-up action was conducted by the officers of Preventive Branch of the Customs Headquarters, Jaipur at the Residence of Shri Bharat Hemarajani, Situated at H.No.57, Gali No.4, Kishanganj, Beawar; Shri Manoj Phulwani Situated at 1/24, Hari Niwas, Kishanganj, Beawar & Shri Rajkumar Bhojwani, Near Laxmi Bhog Atta Shop/Factory, Ganeshpura, Beawar and Shops of the noticees, situated at M/s. Mahadev Tyre, Chang Gate, Gandhi Murti Circle, Beawar & M/s. Vinayak Tours n Travels, Chang Chittor Road, Opposite Maheshwari Hostel, Beawar (Rajasthan). Nothing incriminating was recovered from these premises.
9. The seized Foreign & Indian Curreney value in INR 38,16,029/- (Foreign currency valued in INR 37,90,488/- and Indian Currency Rs.25,541/-) was sealed with the Seal "8 vk;qDr] lhek 'kqYd vk;qDrk;y;] t;iqj" after keeping the same in a plastic box which was sewed with a white cloth. The said currency was deposited in the Valuable Malkhana 6 C/50017/2023 of Customs Headquarters, Jaipur and entry of the same had been made at V.M entry No. 20/2018 in the Valuable article register. Further, the one bag black color with mark "TVS TYRES", Four Empty Sweets Boxes with inner paperboard with mark on cover "Jh jk/ks jk/ks fe"Bku Hk.Mkj ", one wallet of Brown colour marked wonder & one wallet of Black colour marked CM, which were used to conceal the said currency were also sealed with the Seal "8 vk;qDr] lhek 'kqYd vk;qDrk;y;] t;iqj" after sewing the same with a white cloth and these had also been deposited with Customs Headquarters Malkhana on 10-08-2018, entry of the same has been made at S.No. 27/2018 of the Malkhana Register.
10. The Export of Foreign Currency is not allowed by an Indian resident or a foreigner residing in India, going out of India, in terms of Section 3 & 4 of Foreign Exchange Management Act, 1999 read with regulation 3,5 and 7 of the Foreign Exchange Management (Export and Import of Currency) Regulations, 2015, Rule 7 of the Baggage Rules, 2016 and Section 77 of the Customs Act, 1962. The said foreign & Indian currency appeared to have been smuggled/attempted to be smuggled out of India by Shri Bharat Hemrajani and Shri Manoj Phulwani (without having any legal documents or permission/approval of Reserve Bank of India), therefore the said currency qualify to be prohibited in terms of Section 2(33) of the Customs Act, 1962 and it appeared that Shri Bharat Hemrajani and Shri Manoj Phulwani have attempted to smuggle the said currency out of India by way of concealing the same inside their bags and wallets by contravening the provisions of Section 3 & 4 of Foregin Exchange Management (Export and Import of Currency) Regulations, 2015 Rule 7 of the Baggage 7 C/50017/2023 Rules, 2016 and Section 77 of Customs Act, 1962, therefore the currencies appeared to be liable for confiscation under 113 (d) and 113
(e) of Customs Act, 1962 and the noticees appeared liable for penal action under 114 and 114AA of the Customs Act, 1962.
11. Mr. B. Hemrajani and Mr. Manoj Phulwani no. 2, in their statements dated 06/07-08-2018 stated that the currency notes were given to them by Shri Rajkumar Bhojwani of Beawar for further delivery to his brother Shri Girish Bhojwani at Dubai. Shri Raikumar Bhojwani R/o Near Laxmi Bhog Aata Shop/Factory, Ganeshpura, Beawar Rajasthan(hereinafter referred to as the "noticee no. 3") did not appear in compliance of the various Summons dated 14-09-2018, 04-10-2018 & 28-10-2018 . The summons dated 28-10-2018 for appearance on 02- 11-2018 was sent through Hqrs. Preventive branch and was delivered to Shri Iswardas father of Shri Rajkumar Bhojwani and in the acknowledgement he mentioned that Shri Rajkumar Bhojwani is out of country and whenever he comes, he will hand over the summon to him and tell him to appear before customs officers.
12 (i). A letter of C.No. VIII(48)AP/17/2018/983 dated 10-04-2019 was issued to Shri Ishwardas Bhojwani, father of Shri Rajkumar Bhojwani enclosing summons dated 10-04-2019 issued to Rajkumar Bhojwani, since he acknowledged the earlier summons issued to Shri Rajkumar Bhojwani to provide certain information. Reply to the said letter was received on 29-04-2019 from Shri Ishwardas Bhojwani, wherein it was informed that Shri Rajkumar Bhojwani is presently in Dubai and will be in India on 05-06-2019. Accordingly the Superintendent, Customs Airport, Jaipur issued another summons vide C.No. 8 C/50017/2023 VIII(48)AP/17/2018/ 1281 dated 10-05-2019 to Shri Rajkumar Bhojwani to appear on 07-06-2019 for recording his statement in the matter and forwarded the same to Shri Ishwardas Bhojwani vide letter C.No. VILI(48)AP/17/2018/1282 dated 10.05.2019. 12 (ii). In compliance of the summons dated 10-05-2019 Shri Rajkumar Bhojwani appeared before the Superintendent, Customs Airport, Jaipur on 07-06-2019 and tendered his statement under Section 108 of the Customs Act, 1962. In his statement he interalia stated that he is presently residing at C-15, Kirtinagar, Paz Nagar Road, Ajmer with his in-laws and his parents are residing at near Laxmi Bhog Atta Factory Ganeshpura, Beawar; that he is in Dubai since 2003 and at present working in his Brothers company M/s. Krishna General Trading LLC in Dubai and earns an amount of 8400 dirhams per month; that he visited India twice prior to this but could not appear for tendering his statement due to illness of his father; that he has gone through the statements dated 06/07-08-2018 and-07-08-2018 tendered by Shri Bharat Hemrajani and Shri Mano Phulwani and appended his signature on it. On being asked about the statement of Shri Manoj Phulwani- wherein he had stated that the seized currency amounting to Rs.38.16.029/- was given by you (Rajkumar) and on reaching Dubai, he will have to hand over the same to your brother Shri Girish Bhojwani. He stated that though he knows Shri Manoj Phulwani since 2001, and he used to book Rail and Air Tickets through him but he has not given the sweet packets containing the Indian and foreign currencies and denied having any connection with the said statement of Shri Manoj Phulwani and the seized currencies.
9 C/50017/2023 12 (iii). Though Shri Rajkumar Bhojwani denied his involvement in the case of seized foreign and Indian currencies valued in INR 38,16,029/-, illegally being carried by Shri Bharat Hemrajani and Shri Manoj Phulwani, but it appeared from his statement dated 07-06-2019 tendered under Section 108 of the Customs Act, 1962, wherein he categorically admitted that he knows Shri Manoj Phulwani since 2001 and used to get his rail and air tickets booked through him. Shri Manoj Phulwani in his statements dated 07-08-2018 tendered under Section 108 of the Customs Act, 1962 categorically admitted that the seized Indian and foreign currencies totaling INR Rs. 38,16,029/- seized from him, and from Shri Bharat Hemrajani on 06/07-08-2018 was given to him by Shri Rajkumar Bhojwani, and on reaching Dubai he was to hand over the same to Shri Girish Bhojwani brother of Shri Rajkumar Bhojwani, with whom he is presently working. Therefore, the contention of Shri Rajkumar Bhojwani appeared to be an afterthought only in order to escape from the consequences.
13. From the investigation conducted, there appeared enough evidences that the noticees (including this Appellant) had been involved in smuggling of Foreign & India Currencies of value in INR 38,16,029/-.
14. Accordingly Noticee no. 1 Shri Bharat Hemrajani S/o Shri Rajesh Kumar Hemrajani, Resident of House no. 57, Gali No. 04, Kishangarh, Beawar, Ajmer(Rajasthan), noticee no. 2 Shri Manoj Phulwani, Resident of 1/24, Hari Niwas, Kishanganj, Bewar, Ajmer(Rajasthan) and noticee no. 3 Shri Rajkumar Bhojwani S/o Shri Ishwar Das presently residing at C-15, Kirti Nagar, Faz Nagar Road, Ajmer 305001 were called upon to show cause as to why;
10 C/50017/2023
(a) Foreign & Indian Currency of value in INR 38,16,029/- (Foreign currency valued I INR 37,90,488/- and Indian Currency Rs. 25,541/-) recovered from the noticee no. 1 and noticee no. 2 and seized under Section 113(d) and 113(e) of the Customs Act, 1962.
(b) The bag black color with mark "TVS TYRES", Four Empty Sweets Boxes with inner paperboard and with mark on cover of "Jh jk/ks jk/ks fe"Bku Hk.Mkj", one wallet of Brown colour marked wonder & one wallet of Black colour marked CM, which were used for concealment of the said Currency should not be confiscated under section 119 of the Customs Act, 1962.
(c) Penalty should not be imposed upon noticee no. 1 Shri Bharat Hemrajani under Section 114 and 114AÀ of the Customs Act, 1962.
(d) Penalty should not be imposed upon noticee no. 2 Shri Manoj Phulwani under Section 114 and 114AA of the Customs Act, 1962.
(e) Penalty should not be imposed upon noticee no. 3 Shri Rajkumar Phulwani under Section 114 and 114AA of the Customs Act, 1962.
15. The appellant appeared and contested the SCN inter alia stated that the other co-noticee have wrongly stated that they have received the money from him for delivery to his brother Mr. Girish Bhojwani at Dubai. He further stated that he is resident of C-15, Kirti Nagar, Faz Nagar Road, Ajmer where he resides with his in-laws and his parents are residing at Ganeshpura, Beawar. That he is in Dubai since 2003 and presently working in M/s Krishna General Trading LLC at Dubai and earns about 8,400 Dirhams per month. He further stated that he knows Manoj Phulwani since 2001 and he used to book rail and air tickets through him. He has not given the sweet packets containing Indian and foreign currency and denied having any connection, as claimed in his statement by Manoj Phulwani. However, the revenue made him co-
11 C/50017/2023 noticee alongwith the other two persons namely Bharat Hemrajani and Manoj Phulwani. The appellant in the course of personal hearing had also produced copy of his bank passbook in support of his contention. He had also contended that keeping in view his financial position and family background, he cannot be expected to have the huge amount of Indian & foreign currency as claimed by the other co-noticees. The SCN was adjudicated on contest, so far as this appellant is concerned and vide O- I-O dated 30.06.2020, it was ordered to absolutely confiscate the foreign currency under Section 113(d) & (e) of the Act and also ordered absolute confiscation of the black bag with mark TVS Tyres, 4 sweet boxes having the mark on the cover 'Shri Radhe Radhe' Mistor Bhandar, one wallet of brown colour, one wallet of black colour which was used for concealment. The Indian currency was not confiscated being within the permissible limit. Further, penalty was imposed on the other co-noticees under Section 114 (i) and 114AA, and also on this appellant, Rs. 1,50,000/- under Section 114(i) and Rs. 1 lakh under Section 114AA of the Act.
16. Being aggrieved this appellant preferred appeal before the Commissioner (Appeals) inter alia urging that he has no connection in respect to the seized currency. He had stated at the time recording of statement, that he had no connection with the said currency and he does know why Mr. Manoj Phulwani have taken his name, stating that he received the foreign currency from him. He further stated that he has got no source of fund and also stated that he has been mostly living in Dubai since 2003, and is working as sales executive in the firm his brother-Girish Bhojwani, earning about 8400 Dirhamss per month.
12 C/50017/2023 Further, they have also searched the premises of appellant on 7.08.2018 and nothing incriminating was found. This appellant have also produced the copy of his bank account (two savings account), wherein, no such high value transactions were found. It was also urged that on the basis of statement of third person/ co-accused, the appellant have wrongly been imposed for penalty only on assumption and presumption. Further urged that as the said person Mr. Manoj Phulwani have not been examined by revenue in the adjudication proceedings, such statement have got no evidentiary value for non-compliance of the provisions of Section 138B.
17. However, Commissioner (Appeals) was pleased to reject the appeal relying on the Order-in-Original.
18. Being aggrieved the appellant is before this Tribunal. Assailing the impugned order, learned Counsel for the appellant urges that no case of abetment is made out against this appellant. Further revenue have not found any evidence that the seized foreign currency was received by Mr. Manoj Phulwani from the appellant. The whole case is made out on assumptions and presumptions, relying on the statement of Mr. Manoj Phulwani. Learned Counsel further reiterated the grounds taken before the court below.
19. Learned AR for revenue relies on the impugned order.
20. Having considered the rival contentions and after perusal of records, I find that there is no evidence that the seized and confiscated foreign currency was given by the appellant to Mr. Manoj Phulwani. I further find that the statement of Mr. Manoj Phulwani is not reliable piece of evidence, as revenue have failed to comply with the mandate of 13 C/50017/2023 Section 138B of the Act. Section 138B(b) requires that such person who made the statement has to be examined as witness in the adjudication proceedings, and if the adjudicating officer having regard to the circumstances of the case, admits the same in evidence, thereafter, such witness should be offered for cross examination by the noticee and only after such statement is tested in cross examination, the same can be relied upon. Sub-section (2) of Section 138B categorically provides that the mandate of Section 138B(1) shall so far as may be, apply in relation to any proceedings under this act, other than a proceeding before a court, as they apply in relation to a proceeding before a court.
21. In view of my aforementioned observations and findings, I allow this appeal and set aside the impugned order. Appellant shall be entitled to consequential benefits.
(order dictated in the open court) (Anil Choudhary) Member (Judicial) sb