Custom, Excise & Service Tax Tribunal
Shri Mohammad Akaram vs C.C. New Delhi(Air Cargo Export) on 19 September, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Appeal No. C/50160/2016-CU(SM)
[Arising out of Order-in-Appeal No. CCA/Cus/D-I/Air/2422/2015 dated 01.12.2015 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), New Delhi].
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
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?
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 Mohammad Akaram .Applicants
Vs.
C.C. New Delhi(Air Cargo Export) .Respondent
Appearance:
Shri Ankit Totuka, Advocate for the Applicants Shri R.K. Mishra, DR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Date of Hearing: 31.08.2016 Date of Pronouncement: 19.09.2016 FINAL ORDER NO. 53643/2016-CU(SM) Per Archana Wadhwa:
As per the facts on record, the appellant Shri Mohammad Akaram arrived at T3 IGI Airport New Delhi from Saudi Riyadh and walked through the green channel. He was intercepted by the Custom officers near the exit gate after he had crossed the green channel and on suspicion was diverted for x-ray screening of his baggage. During the x-ray screening, two iron presses were recovered from his bag which were opened with the help of a screw driver and were found to have concealed three gold bars glued to the base of the press with adhesive tape. A Vaseline jar found from the said baggage was also opened and 4 gold bars were found to have been dipped in the Vaseline jelly. The total of seven gold bars so recovered were got appraised from an authorized appraiser and was found to be of total value of Rs.20,60,100/-. As the appellant could not produce any documents to show the legal possession of the same and in as much as the disembarkation slip was left blank by the assessee in respect of the total value of the dutiable goods being imported, a view was undertaken that the appellant intended to smuggle the said gold bars.
2. As per the statement of the appellant recorded on the spot, he had studied upto fourth standard and had gone to Riyadh to work as a labourer. As his sister was to get married in near future, he brought the gold for the marriage purposes, he admitted that the gold bars in question were concealed in his personal belongings and he was aware of the fact that gold could not be brought freely, without payment of duty to India.
3. In view of the above, proceedings were initiated against the noticee resulting in passing of the present impugned order vide which the gold in question stands absolutely confiscated along with imposition of penalty of Rs.2 lakhs under section 112(a) and (b) of the Customs Act 1962. In addition, penalty of Rs.4 lakhs stands imposed upon him under section 114AA of the Customs Act 1962.The order passed by the original adjudicating authority stand upheld by Commissioner (A) and hence the present appeal.
4. Ld. Advocate appearing for the appellant has drawn my attention to various evidences available on record, including the initial statement of the appellant deposing that the gold in question was brought for the purpose of marriage of his sister, and not for indulging in any business activities of trading the same in the market. The prayer in the appeal is to reduce the penalty of Rs.2 lakhs imposed under section 112 of the Customs Act and to set aside the penalty imposed under section 114AA. Reliance stands placed upon the Tribunal order in the case of Zainuddin Vs. CCE Hyderabad-2015 (330) ELT 697 (Tri-Bang.).
5. The Ld. DR appearing for the Revenue opposes the prayer for reduction in penalty or for setting aside the penalty imposed under section 114AA on the ground that the fact that the gold was brought by concealing the same is reflected on the appellants malafides to smuggle the same into India without payment of duty, thus calling for harsh penalty.
6. It is an admitted fact that the gold was brought to be smuggled into India by concealing the same in an effective manner and the appellant also crossed the green channel without declaring the same. Not only that, the embarkation slip filed by the appellant, also left column 6 as blank which required him to declare the value of the dutiable goods. The said facts are not being denied by the appellant and stand accepted.
The plea to reduce the penalty under section 112 and to set aside the penalty under section 114AA is based upon the fact that the appellant is a poor, uneducated and unemployed labour who has gone to Riyadh with a purpose of earning money for improving the financial condition of his family. The gold in question was purchased by the appellant and was brought to India for the purpose of marriage of his sister. The evidences leading to the facts that marriage ceremony was to take place in near future stands placed on record by him. Though the fact is that he violated the law of the land by trying to smuggle gold into the land, I am of the view that penalties imposed upon him needs some interference on account of the fact that the gold in question stands absolutely confiscated.
7. The reliance by the Ld. Advocate on the Tribunals decision in the case of Zainuddin is appropriate. Para 9 of the said decision reproduced as under:
The appellants had submitted that a calculation sheet which shows that the profit taking the present market value as on 15.12.2013 was only Rs.16 lakhs. The margin has gone up now since the exchange rate between dollar and rupee is favourable. Nevertheless, in view of the fact that we have upheld the absolute confiscation itself and having found no reason to allow the redemption on payment of fine under the facts and circumstances of this case, we consider that penalties imposed under section 112(a) and 114AA is harsh. Section 112 provides for penalty when a person renders goods liable to confiscation under section 111 of the Customs Act, 1962. Section 114AA provides for penalty when there is a short levy having taken place. Because of the seizure of the gold and confiscation thereafter, it cannot be said short levy has taken place. Having regard to the fact of absolute confiscation and in case of absolute confiscation, there cannot be short levy, we consider the penalty under Section 114AA need not be confirmed. As regards the penalty under section 112(a) of the Customs Act, 1962, we consider that since gold has been absolutely confiscated, it would be appropriate to reduce the penalty to a nominal amount. Accordingly, the penalty imposed on the appellants is reduced to Rs. 1 Lakh each. The confiscation of Indian currency and foreign currency is also upheld. Penalties under section 112 were reduced on account of the fact of absolute confiscation of the goods and penalty under section 114AA was set aside in as much as there cannot be said to have been any short levy on account of absolute confiscation. As such by following the said decision of the Tribunal, I reduce the penalty imposed under section 112(a) and (b) to Rs. 1 lakh and set aside the penalty imposed under section 114AA.
8. But for the above reduction in penalties the appeal is otherwise rejected.
[Order Pronounced in the open Court on 19.09.2016] (Archana Wadhwa) Member (Judicial) Bhanu 2 C/50160/2016-CU(SM)