Custom, Excise & Service Tax Tribunal
Panchbhaya Ismail Suleman vs Airport, Mumbai on 18 January, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: C/07/2010
[Arising out of Order-in-Original No: COMMR/TKG/ADJN/07/2009-10 dated 29/09/2009 passed by the Commissioner of Customs, Airport, Mumbai.]
For approval and signature:
Honble Shri C J Mathew, Member (Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
No
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
Panchbhaya Ismail Suleman
Appellant
Vs
Commissioner of Customs
Airport, Mumbai
Respondent
Appearance:
Shri Anil Balani, Advocate for the appellant Shri C Singh, Asstt. Commissioner (AR) for the respondent CORAM:
Honble Shri C J Mathew, Member (Technical) Date of hearing: 18/01/2016 Date of decision: 18/01/2016 ORDER NO: ____________________________ The limited issue in this appeal filed by Shri Panchbhaya Ismail Suleman is the exercise of discretion by the adjudicating authority in denying the option for redemption of confiscated goods.
2. The appellant, a passenger departing from the country, was found to be carrying Indian currency amounting to ` 34,50,000/- concealed in packs in hand-baggage. The currency was confiscated under section 113 of the Customs Act, 1962 and penalty imposed on the passenger under section 114(1) of the Customs Act, 1962. At the initial stage of investigation, the appellant had claimed to be a carrier on behalf of another individual but controverted this assertion in later statements as well as in submissions. The original authority did not find these to be acceptable and confiscated the currency without giving option to redeem them.
3. The appellant contends that, though in accordance with section 125 of the Customs Act, 1962 which deals with the confiscated goods, discretion is vested in the adjudicating authority in relation to prohibited goods which, admittedly, the export of Indian currency is, the non-exercise of such discretion should necessarily be justified in the adjudication order. It is canvassed by the appellant that the ownership, or lack of it, was not a proper or sufficient ground to deny the option. In support of this contention, reliance was placed on the decision of the Government of India in Suthar Narendra Somnath and Shakila Abdul Rashid Shaikh [Order No. 35-36/08 dated 24th April 200]. Likewise, the decision of this Tribunal in Peringatil Hamza v. Commissioner of Customs [Order No. A/1228/14/SMB/C-IV dated 18/07/2014] which, inter alia, states:
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. was cited.
4. Learned Authorized Representative has cited the decision in Harish Muljimal Gandhi v. Commissioner of Customs, ACC, Mumbai [2013 (294) ELT 470 (Tri.-Mumbai)], Salim M Mamdani v. Commissioner of Customs (Airport), Mumbai [2007 (217) ELT 94 (Tri.-Mumbai)], Siddhick Vayalilakath @ Siddique v. Commissioner of Central Excise & Customs, Thiruvananthapuram [2007 (213) ELT 631 (Tri.-Chennai)] to support of the recourse to absolute confiscation by the original authority.
5. On a careful perusal of the impugned order it is seen that the original authority has discussed at length about the ambivalence of the passenger in relation to ownership of the confiscated Indian currency. Moreover, it is also seen that the impugned order has considered it necessary to examine the implication of the allegation against the appellant thus:
36. In this case, no legally acceptable proof has been produced which could indicate that the impugned currency was generated out of legal dealings and who actually is the owner or owners of this currency. The passenger has initially co-operated with the investigation but later on took a reverse summersault. The real owner has remained behind the scene and used the passenger as a stooge in the act of smuggling. The currency was thus attempted to be sent out of India through a carrier in a clandestine manner. It is, therefore, obvious that the impugned currency was not free from taint and was generated and procured through illegal channels. The outflow of currencies in illegal and clandestine manner does give a telling blow to the economy of the country. Additionally, the currencies in cash form can be and is invariably used in several economically, politically, international crimes as it is very difficult to trace the source in cash transactions. Hence, it is necessary to deal sternly with such offences whenever come to notice. Under the circumstances, I am not inclined to extend any option of redemption of the impugned confiscated currency to the passenger, in lieu of confiscation. For reaching such a conclusion, I am also guided by the decision of the Honble Supreme Court in the case of Sheikh Mohd. Umar [1983(13) ELT 1439 (SC) and decisions of the Honble Tribunal in the case of (i) Salim M Mamdani vs. Commissioner of Customs, Airport (Mumbai) [2007 (217) ELT 94 (Tri.-Mumbai)], (ii) Molok Boloky vs. Commissioner of Customs, Mumbai [2005 (192) 294 (Tri.-Delhi)] and of (iii) Siddhick Vayalilakath @ Siddique vs. CCE & C, Thiruvananthapuram [2007 (213) ELT 631 (Tri.-Chennai)].
6. It cannot, therefore, be concluded that lack of ownership was the sole ground for non-exercise of the discretion to allow redemption on payment of fine. Section 125 of the Customs Act, 1962 is, in fact, unambiguously clear in granting discretion to the confiscating authority to allow redemption on payment of fine if the goods are prohibited. Undoubtedly, the export of Indian currency is prohibited. Notwithstanding the veracity of the claim of the appellant to be the owner of the currency, there is no valid legal ground for an individual to carry Indian currency out of the country. These are not accepted for transactions anywhere in the world. The purpose of taking out such currency could be for manifold reasons with none of them skirting the fringes of legality. This point is clearly alluded to in the impugned order.
7. Not withstanding the various decisions cited on behalf of the appellant there are probably an equal number of decisions which counter those submissions. The decision must rest on the facts and circumstances of each case. It would appear that the exercise of discretion by the original authority in this case cannot be faulted on legal, procedural or logical grounds. In the circumstances in which the Indian currency was attempted to be taken out, I am inclined to concur with the decision of the adjudicating authority in upholding the absolute confiscation of the Indian currency.
8. In view of the above the appeal is dismissed.
(Pronounced in Court) (C J Mathew) Member (Technical) */as 6