Customs, Excise and Gold Tribunal - Mumbai
Hasmukharai Chatrabhuj Shah And Ors. vs Collector Of Customs on 8 January, 1986
Equivalent citations: 1986ECR430(TRI.-MUMBAI), 1986(25)ELT973(TRI-MUMBAI)
ORDER K. Gopal Hegde, Member (J)
1. The Revision Application filed before the Government of India against the order bearing 372-A, - 374-A of 1979 dated 15-12-1979 passed by the Central Board of Excise & Customs statutorily stood transferred to the Tribunal and registered as Appeal No. 315/80.
2. Two Revision Applications filed before the Government of India against the Order-in-Appeal bearing No. 539-A - 540-A of 1979 dated 6-3-1980 passed by the Central Board of Excise & Customs, statutorily stood transferred to the Tribunal for being heard as appeals and they are registered as Appeal Nos. 392/80 and 437/80.
3. As all these appeals involve common questions of law and facts they are clubbed together. Hence this common order.
4. The appellants in Appeal Nos. 392/80 and 437/80 had requested for an adjournment but their request was not granted. They had however, remained absent on the date of hearing. Therefore, Shri Pattekar who appeared for the respondent was heard.
5. The brief facts necessary for the disposal of these appeals may be stated as under:
On 14-3-1976 the Customs Intelligence Officers found two suitcases exceptionally heavy and unclaimed lying in the baggage section. On examination of the Airway Bills it was found out that one of the baggage was the unaccompanied baggage of Lilaram Bhojwani and the other was the unaccompanied baggage of one Shri Hotchand. Though the Airway Bills were in the names of Lilaram Bhojwani and Hotchand, their addresses were shown as C/o. Nathani and Hasmukh Shah, respectively. Efforts were made to locate Shri Nathani and Shri Hasmukh Shah. Shri Nathani denied having known Lilaram Bhojwani. Shri Hasmukh Shah who is the appellant in Appeal No. 315/80 stated that he had known Hotchand and had met him at Dubai and that he had come to know Hotchand through one Shri Motumal Udhavdas who was married to Hotchand's sister. He further stated, that the Airway Bill received at his address was handed over by him to Hotchand. He also undertook to produce Hotchand. Thereafter, the unaccompanied baggage of Shri Hotchand was examined in the presence of panchas as well as Shri Hasmukh Shah and it was found to contain articles of foreign origin valued at Rs. 7,845/- CIF and Rs. 22,535/- M.V. The goods were then seized in the reasonable belief that they were liable to confiscation under the provisions of the Customs Act. Shri Hasmukh Shah had again promised to produce Hotchand. On 25-4-1976 Hotchand also arrived from Dubai and Hasmukh Shah identified him. Shri Hotchand also identified Shri Hasmukh Shah. During the interrogation Shri Hasmukh Shah also stated that he knew Shri Khetsi, a person engaged in purchasing foreign goods from passengers coming by sea or air. He further admitted to have gone with Shri Khetsi by air to Dubai. He also identified Shri Khetsi.
6. Statement of Shri Hotchand was also recorded and among other things he stated that he was a frequent traveller to Dubai and he used to bring goods from Dubai and dispose them of in local markets. He further stated that Shri Khetsi used to take his signature on blank page of a landing certificate and used to take landing certificates in his name (Hotchand's name). Shri Hotchand also stated that one Shri Kanayalal and the appellant Hasmukh Shah and Shri Khetsi were all partners and they were getting goods of foreign origin. It was also stated by Hotchand that the goods which he had brought on 4-3-1976 were meant for Khetsi and delivered to Khetsi for a return ticket and also got Rs. 2,000/- from Khetsi. As regards the goods brought on 5-3-1976 Hotchand stated that he delivered them to Khetsi and Kanayalal gave a return ticket and Khetsi gave him Rs. 1,500/-. As regards the unaccompanied baggage which was covered by Airway Bill No. 072-00382012 Hotchand stated that the same was to be cleared by Khetsi as arranged by Khetsi, Kanayalal and the appellant Hasmukh Shah. Hotchand further stated that the appellant Hasmukh Shah, Khetsi and Kanayalal were equal partners in the profit got by sale of foreign goods received in India through him and Kanayalal.
7. In his statement Shri Khetsi among other things admitted of buying goods from passengers arrived by air and sea and selling them in retail. He also admitted having known Hotchand, Kanayalal and the appellant. He further stated that he came into contact with the appellant Shri K.B. Aswani. He also stated that during one of his visits the appellant Shri K.B. Aswani asked him to introduce some passengers who would bring foreign articles from Dubai for which he would be willing to spend Rs. 5,000/-. He, therefore, introduced Shri Kanayalal to Shri K.B. Aswani. He further stated that Kanayalal had given him an Airway Bill to be handed over to Aswani and he had handed over to Aswani on or about 19-3-1976. Shri Khetsi further stated that Kanayalal, appellant Hasmukh Shah, Hotchand and himself had met in Room No. 6 of Diamond Hotel and had discussed various issues and one of them was regarding Rs. 35,000/-which was given by Hasmukh Shah to Shri Kanayalal. Hasmukh Shah had informed Kanayalal that Rs. 5,000/- out of Rs. 35,000/- was from Aswani, Rs. 20,000/- belonged to Kanayalal and the balance Rs. 10,000/- belonged to Hasmukh Shah and himself (Khetsi). Shri Khetsi also identified Shri K.B. Aswani as an officer whom he had met at the Air Cargo Unit and Diamond Hotel. It was also in the statement of Khetsi that through Kanayalal he had come to know that Shri K.B. Aswani had paid him Rs. 5,000/-for the purchase of goods at Dubai. Shri Khetsi also stated that he and the appellant Hasmukh Shah had gone to Dubai and they had also come to Airport on 10-4-1976 to see off Hotchand to Dubai.
8. During the course of investigation the residence of Shri K.B. Aswani was searched under a search warrant. During the search certain incriminating documents and foreign currencies were recovered. When the officers were busy writing panchnama Shri K.B. Aswani in the pretext of going to answer calls of nature quietly disappeared. The search carried out was unsuccessful. On the next day Shri Aswani however appeared before the Assistant Collector of Customs, Airport.
9. The Customs Officers also searched the residential premises of Shri K.B. Aswani's brother, Shri Chuharmal Bulchand Aswani who is one of the appellants. During this search certain foreign currency and two fibre suitcases, one bearing Airway Bill markings were recovered.
10. The unaccompanied baggage which came in the name of Lilaram Bhojwanr was examined and it was found to contain goods of foreign origin valued at Rs. 5,596/- CIF and Rs. 16,788/- M.V. They were seized in the reasonable belief that they were smuggled into India.
11. Statement of the brother of Shri K.B. Aswani, namely the appellant Shri Chuharmal Aswani revealed that on two occasions Shri K.B. Aswanihad cleared his baggage and though they contained dutiable goods they were cleared on free allowance.
12. The investigation revealed that Airway Bill bearing No. 098-08496040 dated 26-1-1976 which related to unaccompanied baggage of Kanayalal was addressed to the appellant Hasmukh Shah. The investigation further disclosed that Kanayalal had arrived at the Airport on 14-3-1976 on which day the two unaccompanied baggage were also found in the name of Hotchand and Bhojwani.
13. After completion of investigation, show cause notices were issued to the present appellants and others alleging that foreign goods including the goods seized from the unaccompanied baggage had been either for third parties or for sale; the goods were in excess of the permissible allowances and import of goods required valid import Trade Control Licence, but there were no licences. It was also alleged that there was violation of Section 13(1) read with Section 67 of the Foreign Exchange Regulation Act.
14. It was further alleged in the show cause notice that Kanayalal, Khetsi, Hasmukh Shah, Hotchand and K.B. Aswani entered into a conspiracy to import foreign dutiable and restricted goods into India as accompanied and unaccompanied baggage for sale in India on profit. It was further alleged that Kanayalal, Hasmukh Shah, K.B. Aswani, C.B. Aswani, Hotchand, Lilaram Bhojwani, Jayantlal, Deepak Balani, and Nathani unauthorisedly imported the goods in contravention of the Import Trade Control Regulations or abetted the unauthorised import. All the above persons were directed to show cause as to why the seized goods should not be confiscated and why personal'penalty should not be imposed on them.
15. The Additional Collector who held the enquiry on consideration of the material placed before him ordered confiscation of the seized goods and also imposed a penalty of Rs. 15,000/- each on the appellants, Shri Hasmukh Shah, K.B. Aswani and Rs. 10,000/- on the appellant Shri C.B. Aswani, besides Rs. 10,000/-, Rs. 15,000/-, Rs. 3,000/- and Rs. 20,000/-on Hotchand, Khetsi, Jayantlal and Kanayalal, respectively.
16. Feeling aggrieved by the orders the present appellants and the others preferred appeals before the Board. The Board by two separate orders referred to above rejected the appeals. As stated earlier the revision applications filed by the appellants before the Government of India stood transferred to the Tribunal and they are now taken into consideration as appeals.
17. During the hearing Shri H.G. Mehta appeared for the appellant in Appeal No. 315/80. Firstly, he contended that the appellant along with the five others were prosecuted under Section 135(1)(a) and 135(1)(b) of the Customs Act and Section 5 of Imports & Exports (Control) Act, 1947 and the Additional Chief Metropolitan Magistrate discharged the appellant and four others. Therefore, there was not even prima facie case made out against the appellant, and as such, the imposition of penalty on the appellant deserves to be set aside.
Secondly, Shri Mehta contended that the order of the Board is not a speaking order inasmuch as it has not given independent findings and the conclusion of the Board is based on surmises and conjectures. Shri Mehta further submitted that the Board failed to appreciate that there was any conclusive corroborating independent evidence adduced by the department to sufficiently implicate the applicant. It was also urged by Shri Mehta that the Board was not justified in relying upon the statements of Hotchand and Khetsi as they were co-accused. Shri Mehta also urged that the imposition of penalty was excessive. Shri Mehta further urged that the show cause notice related to the two unclaimed baggages, but the evidence on the record did not establish that the appellant Shri Hasmukh Shah was in any way concerned with the said baggages, and therefore, no penalty could have imposed under Section 112 of the Customs Act.
18. Shri Pattekar, appearing for the respondent Collector, however submitted that the adjudication proceedings and prosecution are two independent proceedings. The finding in one is not binding on the other. Further, the adjudicating authority is not bound by the Rules of evidence, and the provisions of Criminal Procedure Code. Therefore, the discharge of the appellant by the learned Magistrate has no relevance to the adjudication proceedings. Shri Pattekar further submitted that the Additional Collector had dealt with the evidence against the appellant Shri Shah in great detail and the evidence clearly established the appellant Shah and three others conspired to import goods of foreign into India as unaccompanied baggage and thereafter, disposed them of and shared the sale proceeds. The appellant Shri Shah himself had admitted that he had contributed Rs. 5,000/-for getting the foreign goods. Shri Pattekar therefore, prayed that the appeal of Shri Shah may be rejected.
19. As has been stated earlier Shri K.B. Aswani was not represented during the hearing of the appeal. In his revision application filed before the Government he had raised the following contentions:
(i) He was discharged by the Additional Chief Metropolitan Magistrate.
(ii) He produced certain orders of the Board by which the Board set aside the personal penalty on the appellants on being acquitted by the Criminal Court.
(iii) He also relied on the decision of the Madras High Court. In support of his contention that where there are parallel proceedings before the Courts as well as quasi-judicial bodies, the decision of the Courts would be binding and should be respected by all quasi-judicial authorities.
20. The appellant, Shri C.B. Aswani was also not represented on the date of hearing. In the revision application filed before the Government of India this appellant urged the following grounds:
(I) The Customs Authorities initiated the criminal proceedings and 11 witnesses were examined in the prosecution but they could not even prove the prima facie case against the appellant and the Magistrate had acquitted him.
(II) He is a petty soap seller on retail basis. His monthly earning is less than Rs. 200/-. His wife stitches the clothes and still the family is unable to 'feed the children.
(III) There are High Court's judgments to the effect where there are parallel proceedings before the two Government bodies i.e. the Government Departments and the Courts, and when the Government department initiates the Criminal proceedings in the Criminal Courts, then the decision of the Courts should be respect by the Government Departments. He also produced the extract of the judgment of the Madras High Court reported in 1953 Criminal Law and Journal page 8. He further referred to the. following judgments:
(i) AIR 1952 Madras 653 or 853
(ii) AIR 1957 Madras 1384.
(iii) AIR 1958 SC 1050 or 1959
(iv) AIR 1965 Madras 502
(v) AIR 1968 Patna 300 (IV) He too relied upon certain orders passed by the Board whereby the Board set aside the personal penalties on the persons being acquitted by the Criminal Courts.
21. Shri Pattekar appearing for the respondent Collector however submitted that both Shri K.B. Aswani and Shri C.B. Aswani have admitted having cleared certain goods though dutiable without payment of duty. They have further admitted the sale of baggage items and thereby contravened the provisions of Baggage (Conditions of Exemption) Rules, 1975. Shri Pattekar further submitted that the Additional Collector as well as the Board had given cogent reasons to impose the penalties on these appellants and he would adopt those reasons. He prayed that their appeals may be rejected.
22. I have carefully considered the submissions made by Shri Mehta, learned Advocate for the appellants in Appeal No. 315/80, the contention urged in the revision application by the other two appellants and the arguments addressed by Shri N.K. Pattekar and also perused the records of the case. Shri Mehta and the other two appellants had contended that since they were discharged by the Additional Chief Metropolitan Magistrate in the criminal prosecution lodged against them, the penalty imposed on them should be set aside because the finding of the competent court of law is binding on the adjudicating authority as well as this Tribunal. It was urged that discharge order of the learned Magistrate establishes that there was not even prima facie case made out against the appellant and in the said circumstances levy of penalty under Section 112 of the Customs Act cannot be upheld.
23. This Bench of the Tribunal (West Regional Bench) is situated within the territorial jurisdiction of the High Court of Bombay. The judgments of the High Court of Bombay in the absence of judgment of the Supreme Court to the contrary are binding on this Bench. The question regarding binding effect of the finding of Criminal Court in an adjudication proceeding came up before the Bombay High Court more than once and in the latest judgment of the Bombay High Court in Writ Petition No. 1004 of 1981 decided on February 12, 1985. The Division Bench of the Bombay High Court considered the submissions similar to the submissions made by Shri Mehta and the other appellants. After referring to the judgment of the Madras High Court in S'haik Kasim v. Supdt. Post Office A.I.R. 1965 Madras 502 rejected the contention of Shri Parkar, the Advocate who appeared for the petitioner in the said Writ Petition. "The contention urged was that since the petitioner had been acquitted on merits by the Trial Court and the said acquittal had been 'confirmed by the High Court, the Customs Department cannot reach contrary findings in adjudication proceedings as it would lead to anamolous situation. This argument must be rejected in view of the judgment of the Division Bench of this Court in Miscellaneous Petition No. 85/78 (Chandurkar & Mehta J.J) delivered on 27th/28th November and 1st December, 1981 which fairly and squarely answers the argument raised by Shri Parkar before us and we prefer to follow the Division Bench Judgment of this Court". Thereafter, their Lordship referred to the judgment of Division Bench in Misc. Petition No. 85/78 and observed 'a direct question fell for consideration in connection with the ambit and powers of the Customs Department in initiating adjudication proceedings under Section 111 and 112 of the Customs Act and consequential order of confiscation under Section 121 of the Customs Act and also a penalty under Section 135 of the Customs Act, The facts of this case show that the petitioner was also tried in Criminal Court for offences punishable under Section. 135 of the Customs Act and -ultimately, he was acquitted. The argument that was advanced before the Division Bench was as follows:
'At the very outset, Mr. Singhvi, appearing on behalf of the Petitioner, has contended that Captain Khan having been acquitted by the Additional Chief Presidency Magistrate and that acquittal having been confirmed by the learned Single Judge, it was not now open to the Central Government to proceed on the footing that diamonds were found in the coat brought by Captain Khan on 2nd November 1969 and that it was not permissible for the Central Government to proceed on the.assumption that the finding was incorrect... according to the learned Counsel, it was wholly improper on the part of the Central Government as quasi-judicial Tribunal not to take into consideration of finding recorded by the High Court'.
A very exhaustive and elaborate judgment has been delivered by Chandur-kar J. as he then was. The Division Bench has also considered in its judgment various authorities of the Supreme Court as well as of other High Courts on this question. The Division Bench has also construed the ambit of Section 111, 112 and 135 of the Customs Act and after taking into account all these factors the Division Bench has observed as follows:
'Section 112 is an express provision which authorises the levy of penalty in respect of acts or omissions referred to therein. The procedure with regard to adjudication of confiscation and penalties is expressly provided for in Section 122 of the Act. The power to be exercised by the Collector of Customs or Deputy Collector of Customs or by an Assistant Collector of Customs or by Gazetted Officer of Customs lower in rank than an Assistant Collector of Customs in accordance with the value of the goods liable to confiscation. The procedure to deal with confiscation or imposition of penalty is prescribed in Section 124 and under that provision a notice in writing has to be given to the concerned person informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty, and he is to be given a reasonable opportunity of being heard in the matter. Then comes Section 127 which expressly provides that even though an order of confiscation and an order of penalty is made by the Customs Officer that does not affect the liability to punishment under the provision of Chapter XVI or under any other law. We already reproduced the provisions of Section 135 make it pointedly clear that the power to prosecute under Section 135 is without prejudice to the action which may be taken independently under the provisions relating to confiscation and penalty. Now, it cannot be the argument that while independent powers of making an order of confiscation and penalty can be made by the appropriate officer of the Customs, irrespective of a prosecution under Section 135 being resorted to or not, in case there is a prosecution and there is an acquittal, the power expressly bestowed under Section 112 must be treated as ineffective. Unless we are able to hold that even in spite of the express provisions of Section 112 and Section 127, in case there is an acquittal in prosecution instituted under' Section 135, there powers cannot be exercised the contention on behalf of the Petitioner could not be accepted. We see no warrant for the view that there is a prohibition against the Customs Officers to perform their statutory functions and exercise their statutory power under the Act because of a failure of the prosecution started under Section 135 and the acquittal of the person concerned. By its very nature, the two proceedings are independent of each other. In a given case, evidence which may be available for the purpose of proceedings under Section 112 may not be available or even if it is available, it may be inadmissible in regular Court of Law in which the admissibility and relevance of the evidence is determined with reference to the provisions of the Evidence Act. In a criminal prosecution the accused need not open his mouth nor make any statement while in the proceedings for adjudication or confiscation before the Customs Department, the statement made by the person from whom the contraband articles were seized can be looked into. The scheme of the Act, therefore, clearly indicated that the two proceedings have to be dealt with independently of each other on such material as is available and permissible in these proceedings'.
24. The above judgment of the Bombay High Court is a complete answer to the contention urged by Shri Mehta and the other appellants.
25. The finding of the Additional Chief Metropolitan Magistrate in the criminal case relied upon by the appellants were :
(1) that the oral' evidence adduced by the prosecution in this case does not refer to any of the accused, directly or indirectly.
(2) the oral evidence is unable to connect any of the accused with the unaccompanied two suitcases.
(3) there is no independent evidence to hold that any of the accused tried to import any dutiable articles or they were concerned with them.
(4) it is well established principle of law that the statements of co-accused can be used, at the most, for the purpose of lending support to an independent conclusion arrived on the strength of independent evidence.
(5) that he had gone through the statement of the accused by finding out whether they contain any confessions which can be used against the concerned accused. He did not find any confession, worth the name, which can be used to hold any accused guilty for the offence.
26. Now it is well settled that the provisions of the Evidence Act or the provisions of Criminal Procedure Code as such are inapplicable to adjudication proceedings. The concept of co-accused is alien to an adjudication proceedings. A proceeding before the adjudicating authority is not a criminal trial. If the show cause notice was issued to more than one person, the persons may stand as co-respondents or at best accomplices and not co-accused. The evidence that might have been adduced before the Magistrate may be different from the material available to an adjudicating authority, and therefore the finding of the Magistrate has no binding effect, in an adjudicating proceedings.
27. In the show cause notice issued to the appellants the allegations were made not only in regard to the two unaccompanied baggages but also with regard to the past acts and conduct. The thrust of the arguments of Shri Mehta was that there was no independent evidence to connect the appellant with the unclaimed unaccompanied baggages. This contention has been rejected by the two authorities below. The statement of the appellant, Shri Hasmukh Shah was recorded under Section 108. He had admitted that Shri Hotchand and Khetsi were known to him and he had identified them. An Airway Bill in respect of the unclaimed baggages were sent to his address. In his statement Hotchand among other things had stated that one Shri Kanayalal, appellant Shri Hasmukh Shah and Shri Khetsi were all partners and they were getting goods of foreign origin. The unaccompanied baggage which was covered by Airway Bill No. 072-00382012 was to be cleared by Khetsi as arranged by Kanayalal and the appellant, Hasmukh Shah. In his statement Khetsi inter alia had stated that he knew the appellant Hasmukh Shah and that Shri Hasmukh Shah, Kanayalal, Hotchand and himself had met in Room No. 6 of Diamond Hotel and had discussed various problems, one of them was regarding Rs. 35,000/- which was given by Hasmukh Shah to Shri Kanayalal and that Shri Hasmukh Shah had informed Kanayalal that Rs. 5,000/- out of Rs. 35,000/- was from Aswani, Rs. 20,000/- belonged to Kanayalal and the balance Rs. 10,000/- belonged to Hasmukh Shah and himself (Khetsi). As has been stated earlier the adjudicating authority can rely not only on the statement of Hasmukh Shah but also on the statements of Hotchand, Khetsi and others. Significantly, Hasmukh Shah did not choose to cross-examine either Khetsi or Hotchand. It was not contended that those two persons had any reason to falsely implicate Hasmukh Shah. The evidence and the circumstances discussed above clearly established that the appellant Hasmukh Shah is not only concerned in the import of smuggled goods but was also dealt with the smuggled goods knowingly or having reason to believe that they were smuggled goods. In the said circumstances I see no reason to interfere with the order of penalty imposed on Hasmukh Shah.
28. Now coming to the appellant Shri K.B.Aswani it is true that he did not admit the allegations made in the show cause notice. But then the statements of Hasmukh Shah and Khetsi clearly implicated the appellant Shri K.B. Aswani. As has been stated earlier the show cause notice not only dealt with the two unaccompanied unclaimed baggages but also with the past acts and conduct of Shri K.B. Aswani and others. Shri Khetsi in his statement had referred to the statement of Hasmukh Shah with regard to the payment of Rs. 35,000/- made to Kanayalal who was one of the persons employed to bring smuggled goods from Dubai. According to the statement out of Rs. 35,000/-, Rs. 5,000/- was contributed by Shri K.B. Aswani. Shri Khetsi further stated that Shri K.B. Aswani had asked him to introduce passengers who would bring foreign articles from Dubai for which he would be willing to pay Rs. 5,000/-. He, therefore, introduced Shri Kanayalal to Shri K.B. Aswani. Further Kanayalal had given him an Airway Bill to be handed over to Aswani and he had handed over to Aswani on or about 19-3-1976. During the course of investigation the residence of Shri K.B. Aswani was searched under a search warrant and when the officers were busy writing panchnamas, Shri K.B. Aswani disappeared quietly under the pretext of going to answer calls of nature. Thus, there was sufficient evidence to implicate Shri K.B. Aswani. His part is no less than the part played by the appellant Shri Hasmukh Shah.
Nothing has been alleged as to why Hasmukh Shah and Khetsi should falsely implicate Shri Aswani. In the circumstances I see no reason to interfere with the order of personal penalty imposed on the appellant Shri K.B. Aswani.
29. Coming to the appellant Shri C.B. Aswani, the allegations in the show cause notice was that he along with the other unauthorisedly imported the goods in contravention of the Import Trade Control Regulations or abetted the unauthorised import. There was No. allegation that he entered into a conspiracy to which Kanayalal, Khetsi, Hasmukh Shah, Hotchand and Shri K.B. Aswani were parties. None of the persons namely, Khetsi, Hasmukh Shah, K.B. Aswani and Hotchand said anything against this appellant Shri C.B. Aswani. The only evidence against him was that on two occasions when he brought the goods in excess of the permissible allowance they were cleared by his brother Shri. K.B. Aswani without payment of duty. This allegation even if accepted would not be sufficient to hold that he had illegally imported the goods of foreign origin or that the goods brought by him became liable for confiscation. Therefore, no personal penalty could have been imposed on him. As a matter of fact there was no precise evidence as to the value of the goods brought by him or the amount of duty payable in case of those goods. There was a faint allegation that he has been visiting Dubai several times and was bringing foreign goods and disposing them of. These acts by themselves would not constitute contravention of any of the provisions of the Customs Act. There is no proof that he contravened the Baggage Rules or the provisions of Baggage (Conditions of Exemption) Rules, 1975, I, therefore, allow his appeal and set aside the personal penalty imposed on him. The penalty, if paid shall be refunded to him.
30. On behalf of the appellant Shri Hasmukh Shah, Shri Mehta had contended that the penalty imposed was excessive and harsh. As. has been observed earlier the penalty was imposed not merely on the basis of the value of unaccompanied baggage but also on account, of the past conduct of the appellant, Hasmukh Shah. So is the case with the appellant Shri K.B. Aswani. In the circumstances I see no reason to hold that the penalty imposed on these two appellants is either harsh or unreasonable or unjust.
31. In the result the Appeal Nos. 315/80 and 392/80 are rejected. The appeal 437/80 is allowed. The penalty if paid by the appellant Shri C.B. Aswani shall be refunded to him.