Custom, Excise & Service Tax Tribunal
Pankaj Kumar Tripathi vs Commissioner Of Customs (Csi Airport), ... on 7 May, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL Nos. C/20 & 21/08 (Arising out of Order-in-Appeal No. 214/2007 B dated 21.11.2007 passed by Commissioner of Customs (Appeals), CSI Airport, Mumbai) For approval and signature: Honble Mr. S.S. Kang, Vice President ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Pankaj Kumar Tripathi Appellant Jeetinder Singh Arri Vs. Commissioner of Customs (CSI Airport), Mumbai Respondent Appearance: Shri M.L. Grover, Advocate, for appellant Shri S. Dewalwar, Additional Commissioner (DR), for respondent CORAM: Honble Mr. S.S. Kang, Vice President Date of Hearing: 7.5.2012 Date of Decision: 7.5.2012 ORDER NO Heard both sides.
2. The appellants filed these appeals against a common order-in-appeal. The appellants challenged in these appeals the imposition of penalty of Rs.2,00,000/- each imposed under Section 114 of the Customs Act.
3. The brief facts of the case are that on 5.2.2004 one person, namely, Shri Iqbal Yusuf Suleman, was intercepted by the Customs officials while boarding flight No.WY 808 of Oman Airways leaving from Mumbai to Dubai via Muscat. On the search of Shri Suleman, foreign currency equivalent to Rs.17,98,900.00 was recovered, which was not declared to the Customs authorities. Various statements of Shri Suleman were recorded under Section 108 of the Customs Act and in his statements he disclosed that he travelled almost 200 times to Dubai for business purposes and he was carrying foreign currency for others. In respect of the currency recovered, Shri Suleman admitted in his statement that the same has been handed over to Shri Pankaj Kumar Tripathi, the appellant, and with the help of the other appellant, the same was taken to the airport and was handed over to Shri Suleman at the time of boarding after security check. A show cause notice was issued for confiscation of the foreign currency and for imposition of penalty. The adjudicating authority confiscated the foreign currency equivalent to Rs.17,98,900.00 and imposed penalty of Rs.6,00,000/- on Shri Iqbal Suleman under Section 114 of the Customs Act and penalty of Rs.2,00,000/- each on the present appellants.
4. The contention of the appellants is that the appellants were working in the security staff of the Oman Airways and they had nothing to do with the currency recovered from Shri Suleman. The initial statements were recorded under Section 108 of the Customs Act and were retracted at the first opportunity when the appellants were produced before the Judicial Magistrate, therefore the retracted statements cannot be relied upon for imposition of penalties under the Customs Act. The contention is also that Shri Pankaj Tripathis duty was in the cargo section and Jeetinder Singh was handling baggage on that day and there was no occasion for the appellants to come in contact with the passenger. It is also submitted that as the DRI had intelligence and was keeping surveillance on Shri Suleman and there is no direct evidence that Shri Suleman handed over the currency in question to the appellants and subsequently the appellants delivered the same to Shri Suleman at the time of boarding the flight. The appellants also pleaded leniency on the ground that the appellants are out of service.
5. The Revenue submitted that the appellants were in the security staff of the Oman Airways. Being a security in the security staff, the duty of the appellant was to prevent illegal things to go to the aircraft. In the present case, one Shri Suleman was apprehended while boarding the flight and foreign currency was recovered. As per the statement of Shri Suleman, the foreign currency was handed over to Shri Pankaj Kumar Tripathi, the appellant, and with the help of the other appellant, Shri Jeetinder Singh, the same was taken to the aircraft and was handed over to Shri Suleman and the appellants received Rs.4,000/-, i.e. Rs.2,000/- each, for helping Shri Suleman. Shri Suleman in his statement implicated himself as well as the appellants. Further, both the appellants in their statements admitted that they helped Shri Suleman for carrying the foreign currency without disclosure to the Customs authorities. The Revenue relied upon the decision of the Honble Supreme Court in the case of Naresh J. Sukhawani vs. UOI reported in 1996 (83) ELT 258 (SC) to submit that the statement recorded under Section 108 of the Customs Act is the substantial piece of evidence which is admissible as evidence.
6. In this case, the foreign currency was recovered from one Shri Iqbal Suleman while boarding a flight of Oman Airways to Dubai. Shri Suleman in his statement recorded under Section 108 of the Customs Act named the appellants who helped him in taking the currency in the airport without disclosing to the Customs authorities for the consideration of Rs.4,000/-, i.e. Rs.2,000/- each. The appellants also in their statements recorded under Section 108 of the Customs Act admitted the facts narrated by Shri Suleman. The appellants also admitted that they had received, on earlier occasions also, gifts from Shri Suleman such as mobile phones etc. The appellants being in the security staff of the Oman Airways are to look after security of the passengers. In the present case, the appellants helped Shri Suleman to smuggle foreign currency for consideration. In the present day circumstances, particularly for the safety of passengers travelling by air, the persons like the appellants being in the security staff can do anything for a monetary consideration. In these circumstances, I find no infirmity in the impugned order. The appeals are dismissed.
(Dictated in Court) (S.S. Kang) Vice President tvu 1 5