Customs, Excise and Gold Tribunal - Delhi
Shri Faiyaz Shamim vs Cc on 17 May, 2006
Equivalent citations: 2006(109)ECC206, 2006ECR206(TRI.-DELHI), 2006(202)ELT609(TRI-DEL)
ORDER M.V. Ravindran, Member (J)
1. This appeal is directed against Order-in-Original dated 6.7.2004 against imposition of penalty of Rs. 1 lakh.
2. The relevant facts that arise for consideration are that on 19.9.2003 the Customs officers posted at Chennai International airport intercepted the appellant and inquired from him the contents of his baggage. He replied that he was carrying U.S.$ 25,000/- in his checked-in baggage. Not satisfied with his answer he was taken to the AIU room along with baggage. On the checking of baggage it was found that the appellant was carrying U.S.$ 50,000 in travelers' cheques, and Rs. 10,000/- Indian currency in cash. The appellant was not able to produce any permission granted by the Reserve Bank of India for carrying such a huge amount of foreign exchange in form of traveler's cheques. Show cause notice was issued to the appellant, the directors and Finance Manager of M/s. Dinmay Exim Avenue (P) Ltd., Kolkata. The adjudicating authority in his Order-in-Original came to the conclusion that the appellant has violated the provisions of Section 77 of the Customs Act, 1962 and also Section 113(d) & (h) of the Customs Act, and hence, liable for penalty under Section 114(i) of the Customs Act. Hence, this appeal.
3. When this matter was called out non appeared for the appellant, nor there is any request for adjournment. I find from the record that when this matter was called out first on 12.8.2005, none appeared, and therefore, it was dismissed for non-prosecution. The appellant filed an application for restoration of appeal which was heard on 5.12.2005 and the appeal was restored. Again, the matter was listed on 6.2.2006, none appeared, but the Bench directed to issue notice to the appellant which was issued on 16.2.2006. Despite notice the appellant is unrepresented. Since the matter is of 2004, I take up the matter for disposal.
4. The learned D.R. submits that the appellant has violated the provisions of Section 77, in as much that he failed to declare the contents of his checked-in baggage. It was on interception by the Customs Officers, after completing the Customs and immigration formalities, he intimated that he is carrying travellers' cheques of U.S.$ 25,000. It is the submission of the learned D.R. that the appellant at that stage also did not come clean and only declared the part of the travellers' cheque which he was carrying while he did not declare the second set of travellers' cheques of U.S.$ 25,000/- and the Indian currency. It is submitted that if the appellant is going on business trip he should have the permission of the Reserve Bank of India to carry foreign exchange of more than U.S.$ 25000.
5. Considered the submissions made by learned D.R. and perused the record. I find that the Customs officers at Kolkata recorded the statements of the directors and the Finance Manager of M/s. Dinmay Exim Avenue (P) Ltd. who in their statements have submitted that they had, in fact, applied for the foreign exchange of U.S.$ 25,000 each on two occasions in the name of the appellant. But it is not forthcoming from the record whether there was clearance taken by the company from the R.B.I. as required under Section 5 of FEMA. In the absence of any such permission from R.B.I. for the release of foreign exchange, (beyond the amount of U.S.$ 25,000) carrying the same is contrary to the rules governing the release of foreign exchange.
6. The appellant herein was carrying travelers' cheques worth U.S.$ 50,000 in his baggage. He cleared the customs and immigration barrier without declaring the presence of travelers' cheques worth U.S.$ 50,000. If it is the contention of the appellants, that he was carrying these travelers' cheques for bonafide reason, then it was for him to declare the same at the first instance i.e. when he was clearing the customs barrier and immigration. Having not done so the appellant has definitely violated the provisions of Section 77 and sought to take out the U.S.$ 50,000 foreign exchange in violation of the provisions Customs Act. The confiscation of travelers' cheque and Indian currency under Section 113(d) and (h) of the Customs Act read with FEMA Regulations, 2000 seems to be in connosance with the law.
7. As regards the penalty on the appellant I find that the adjudicating authority in his Order-in-Original has held as follows:
It is further seen that his claim in his letter dated 4.10.2003 addressed to the Additional Chief Metropolitan Magistrate as well as the Commissioner of Customs that the Hon'ble judge was pleased to record his complaint of ill-treatment in R.R. 60/2003 dated 21.9.2003, OS 140/2003-int dated 19.9.2003 is found to be factually wrong as there is no such record. Further, Shri Faiyaz Shamim has claimed that he had studied only up to 9th std. And that he knows only urdu and Bengali and cannot communicate in English etc. and the statement in English does not truly represent his version. However, it is seen that his statement was recorded in his own hand in English. Further, contrary to the contention that he is a simple employee of the company and acted as a mere carrier of the Travellers' Cheques, the reply filed by Shri D.C. Rawat, Managing Director of the company dated 16.5.2004 clearly shows that Shri Faiyaz was to execute various functions during his overseas tour. He was to negotiate deals with buyers and sellers in the course of the business travel and also get the product examined and checked and reimburse pre-incorporation expenses incurred for opening the office at Colombo by the company's Deputy. This makes it clear that he is not a simple employee who has acted as a mere carrier of the Travellers Cheques but he is one, vested with lot of responsibilities in the course of his business travel and was traveling on an executive class ticket. He is a responsible person of the company and as such is expected to realize all his responsibilities while traveling abroad. It is a fact that he carried Travellers' cheques in two different checked-in baggage for a total value of US$ 50000 besides Indian currency of Rs. 10,000/- but did not declare these to the Customs as required under Section 77 of the Customs Act. Therefore, the Travellers' Cheques and Indian currency are liable to confiscation under Section 113(d) & (h) of the Customs Act, 1962 read with FEMA regulations 2000.
From the above finding it can be seen that the appellant has been trying to shift the stand to escape the penal actions. It is also noticed that, despite being in full knowledge of the existence of the travelers cheques worth U.S.$ 50,000/- in his checked in baggage, the appellant chose not to declare the same until he was intercepted while boarding the aircraft, in itself shows the mala-fide intention of the appellant. To my mind penalty imposed on the appellant under Section 114 of the Customs Act, 1962 is just and no interference, is required.
8. In view of the above facts and circumstances mentioned, the appeal is liable to be dismissed. Appeal is dismissed.
(Dictated & pronounced in the Open Court.)