Custom, Excise & Service Tax Tribunal
Shri P. A. Augustian, Advocate For The ... vs Shri R. K. Singla, Jt Cdr For The ... on 12 August, 2011
IN THE ,CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, FKCCI COMPLEX, K.G. ROAD,
BANGALORE 56009.
COURT No. 2
DATE OF HEARING : 12/8/2011
DATE OF DECISION : 12/8/2011
Customs Appeal No. 1197 of 2011
(Arising out of the Order-in-Appeal No. 4/2011 dated 31.1.2011, passed by the Commissioner of Customs (Appeals), Cochin)
For approval and signature:
Honble Shri M. Veeraiyan, 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 the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ? Yes
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
Shri Sanjeevkumar Sood
Versus
Commissioner of Customs,
Cochin.
Appearance
Appellant
Respondent
Shri P. A. Augustian, Advocate for the appellant Shri R. K. Singla, Jt CDR for the Respondent.
CORAM : Honble Shri M. Veeraiyan, Member (Technical) ORDER No..Dated 12/08/2011 Per M. Veeraiyan
1. This is an appeal against the order of the Commissioner (Appeals) No. 4/2011 dated 31.1.2011 by which order of the original authority absolutely confiscating Indian Currency of Rs. 2,07,867/- under Section 111 (d) & (l) of Customs Act 1962, read with provisions of Section 3 (1) (c) of Foreign Exchange Management Act (Export & Import of Currency) Regulation, 2000 and imposing penalty of Rs. 5,000/- stands upheld.
2. Heard both sides.
3. The relevant facts are that a sum of Rs. 2,07,867/- was recovered from the Captain of vessel M.V. Rajiv Gandhi which arrived from Colombo on 8.8.2009 at Cochin. Captain of the Vessel Shri Sanjeevkumar Sood in his statement given immediately after the seizure stated that the above currency was declared as ships currency; that the above money was taken from Kochi during the last call of the vessel. Shri Harish, Manager, Jairam Shipping, the Steamer Agent of the above vessel in his statement dated 24.08.2009 stated that the amount represented ships currency and was meant for processing provisions and medicines and that they were not aware that the ship was taking currency outside India. In pursuance of show-cause notice, the original authority had passed the order dated 16.10.2009 as mentioned above and the same stands upheld by the Commissioner (Appeals).
4.1. The learned Advocate refers a letter number nil dated 30.7.2009 by Jairam & Sons, addressed to Dy. Commissioner of Customs, Preventive Dept., Customs House, Cochin-9, which along with subsequent endorsements is reproduced below:
JAIRAM & SONS 45/364, G.V. AYYAR ROAD,
Agents : WILLINGDON ISLAND,
The Shipping Corporation of India COCHIN 682 003.
TELEPHONE : 2667421
FAX : 91-484-2668592
e-mail : mail@jairam&sons.com
No. .. 30.7.2009
The Dy. Commissioner of Customs
Preventive Dept.
Custom House
Cochin-9.
M.V. RAJIV GANDHI doc 1.8.09
Please permit us to take onboard the above vessel a sum of Rs. 14,20,000/- (Rupees Fourteen lakh twenty thousand only) Denomination of Rs. 100/- [Rupees hundred notes] for payment to the Master for ships disbursements.
Kindly note that the vessel is on foreign/coastal run arriving from PIPAV.
Thanking you, Yours faithfully For The Shipping Corporation of India Ltd.
For Jairam & Sons Sd/-
Agents PERMITTED SUBJECT TO USUAL FORMALITIES Sd/-
S.C (G) / SC (P&I) / SC (DIV) Sd/-
PO (ON BOARD) / SO
Received sum of Rs. 14,20,000/- Sd/-
(Fourteen lakhs twenty thousand only) D. INDIRA
Prev. Officer
Sd/-
MASTER
RAJIV GANDHI
4.2. In the face of the said letter, there is an endorsement by the Customs authority permitted subject to usual formalities and initialed by different officers of the Customs. In pursuance of the said permission, it was claimed that a sum of Rs. 14,20,000/- was handed over to the Master of the vessel and that money recovered was balance out of the same. Therefore, he submits that as the currency has been taken after due permission of the Customs authorities, there is no offence involved. He further submits that at any rate, there is no justification for absolute confiscation of the currency.
5. The learned Jt. CDR, with reference to the letter dated 30.7.2009, submits that it is not known on what basis the Steamer Agent sought for permission for disbursement of Indian Currency. Even if such permission was granted, the currency could not have been taken out of India.
6. I have carefully considered the submissions from both sides. If the Customs authorities have granted permission on letter dated 30.7.2009, as claimed now before the Tribunal, the question of liability to confiscate the currency may not arise. However, it has not been shown that this particular letter has been specifically brought to the notice of the original authority and the Commissioner (Appeals). The learned Advocate is also not in a position to show from the reply that the said letter of the Steamer Agent wherein permission was given by the Customs authorities was relied upon. However, he submits that this letter along with permission was before the original authority and the Commissioner (Appeals).
7. In the absence of discussion on the claim by the appellant that the currency seized was part of the currency specifically permitted by the Customs authorities to be taken on board the vessel, the matter requires fresh consideration. The application for taking the currency on board the vessel did not indicate the provision under which such permission was sought for and the permission granted was also subject to usual formalities. The formalities have not been indicated. Further, no formal letter of permission has been issued from any file of the Customs Department. There is no indication of name of the officer who has initialed the said permission. Therefore, the matter requires to be considered afresh by the original authority.
8. To enable the same, the order of the Commissioner (Appeals) and the order of the original authority are set aside and the matter is remanded to the original authority for fresh consideration.
(Pronounced and dictated in the open court) (M. Veeraiyan) Member (Technical) /vc/