Custom, Excise & Service Tax Tribunal
) Shri Kiran Kumar vs Commissioner Of Customs (Airport) on 18 March, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH
CHENNAI
Appeal No.C/333/2004 & C/379/2004
[Arising out of Order-in-Original No.29/2004-Commr. (Air) dt. 12.7.2004 passed by the Commissioner of Customs, Madras]
1) Shri Kiran Kumar
2) Shri Anwar Aneesur Rahman Appellant
Versus
Commissioner of Customs (Airport),
Chennai Respondent
Appearance:
Shri B. Satish Sundar, Advocate Shri M.M.K. Alifudeen, Advocate For the Appellant Ms. Indira Sisupal, AC (AR) For the Respondent CORAM :
Honble Shri R. Periasami, Technical Member Date of Hearing/Decision : 18.3.2015 FINAL ORDER No.40912-40913/2015 Both the appeals are filed against imposition of penalty arising out of common OIO dt. 12.7.2004 passed by Commissioner of Customs, Chennai. Hence both the appeals are taken up together for disposal.
2. The brief facts of the case relate to smuggling of Indian currency. Based on intelligence and surveillance, the baggage of the passenger Shri Anwar Aneesur Rahman (second appellant herein) who was bound for Dubai by Oman Airways Flight WY 852 on 10.7.2002 from Chennai to Dubai was detained in the airport. Officers seized Rs.21,60,000/- from one baggage and Rs.20,00,000/- from another baggage in both suit cases the Indian Currency was concealed in the false bottom of the suitcase. Accordingly, the currencies were seized as the passenger was not in possession of any valid document in respect of Indian currency notes and failed to make a true declaration. Investigation revealed that appellant was carrying currency as per the instruction of his employer, Mr. Kiran Kumar (first appellant herein). Both Shri Anwar Aneesur Rahman and Shri Kirankumar were arrested. SCN dt. 7.1.2003 was issued for confiscation and also for seizure of Indian currency and also for imposition of penalty. The Commissioner in his impugned order ordered for absolute confiscation of Indian Currency totally valued at Rs.41,60,000/- under section 113 (d) of Customs Act read with FEMA 1999 and FEMA (Export and Import of Currency) Regulations 2000 and imposed penalty of Rs.4 lakhs on Shri Kiran Kumar and Rs.1 lakh on Shri Anwar Aneesur Rahman under Section 114 of Customs Act. Hence the present appeals.
3. Shri Satish Sundar, Advocate appeared on behalf of appellant Shri Anwar Aneesur Rahman, and Shri M.M.K.Aliffudeen, Advocate appeared on behalf of appellant Shri Kiran Kumar.
4. Ld. Advocate, Shri B.Satish Sundar appearing for appellant-Anwar Aneesur Rahman submitted that there is no smuggling of currency out of India. It is not an attempt to export and therefore penalty is not attracted under Section 113 or Section 14. Advocate submits that department initiated parallel prosecution proceedings before the Criminal court and the prosecution case was filed by the Customs in 2005. He submits that the Honble Lower Court acquitted the appellant as no case made out for prosecution. He submits that copy of Judicial Magistrate, Alandur order dt. 10.6.2013. Once the prosecution case has been dismissed and held that there is no attempt and no evidence for smuggling of currency, penalty is not imposable. He relied on the following case law :-
(i) S.Duraiappa Vs CC Chennai 2006 (202) ELT (365) (Tri.-Chennai)
(ii) S.M.A. Siddique Vs GOI 1989 (42) ELT 541 (Mad.)
(iii) C.Srinivas Vs CC Hyderabad 2006 (201) ELT 379 (Tri.-Bang.)
(iv) Kirit Parekh Vs CC Hyderabad 2011 (136) ELT 955 (Tri.-Chennai)
4. The Advocate representing for appellant, Shri Kiran Kumar reiterated the arguments of Advocate, Shri B.Satish Sundar for his case also. He submits that both SCN and the OIO relied extraneous material evidences of past evidence and imposed penalty. He relied on the following citations :-
(1) CC (P) Shillong Vs PIR Khongsdir
1998 (97) ELT 372
(2) Varuni Chemicals (P) Ltd. Vs CCE Madurai
1994 (71) ELT 678 (Mad.)
5. On the other hand, Ld. A.R reiterated the findings of adjudication order and it is a clear case of attempt to smuggling of Indian currency. It is a clear violation of both Customs Act as well as FEMA. The adjudicating authority has clearly brought out the link between Shri Anwar Aneesur Rahman and Shri Kirankumar. In view of the fact that the tickets were purchased from the common travel agents and the second appellant Kirankumar was also inside the airport and following the first appellant. He also submits that ticket payments were made by a firm A.K. Exports which is owned by Mr. Kiran Kumar. Appellants have adopted noval method of concealing "Bag in Bag" where an empty suite case with false bottom concealment and currency was kept inside another suitcase. He further submits that Shri Anwar Aneesur Rahman was working as a manager of A.K.Exports owned by Mr. Kirankumar. He further submits that prosecution acquittal is only on certain facts and not purely on merits. Customs is depending on preponderance of probability of evidence. Corroborative evidence has clearly proved the attempt to export the currency. She submits that extraction of statement which is entire opposite to original statement is not accepted. Therefore, imposition of penalty is justified. She relied the following case laws :-
(1) G.V. Ramesh Vs CC Chennai 2010 (252) ELT 212 (Tri.-Chennai) (2) K.I. Pavuny Vs AC 1997 (90) ELT 241 (SC) (3) K.P. Abdul Majeed Vs CC Cochin 2014 (309) ELT 671 (Ker.)
6. We have carefully considered the submissions of both sides and perused the records and findings of the OIO. The short issue in the present case is only about imposition of penalty on the appellants under Section 114 of the Customs Act. On perusal of findings of the impugned order, the adjudicating has clearly brought out in detail the attempt of smuggling of Indian currency of Rs.41,60,000/- by way of concealment. The original statement of both the appellant and the statement of other witnesses are clearly brought out in the said order. Attempt to smuggling of foreign currency has been clearly established. But for the timely detection the currency would have been smuggled out. Only after the seizure and arrest, the appellant were trying to disown the currency whereas subsequent statement has clearly proved otherwise. As per the statement recorded before the Customs it was a valid evidence and also based on the circumstantial evidences it is clearly brought out that attempt of smuggling of Indian currency belonged to Kirankumar and Anwar Aneesur Rahman carried the same as per the instruction of the first appellant. In this regard, the Honble Supreme Court in the case of K.I. Pavunny (supra), clearly held that confessional statement forms the sole basis for conviction. Subsequent retraction is not relevant. Corroborative evidence is sufficient. Further I find that this Tribunal in the case of G.V. Ramesh Vs CC Chennai (supra) upheld the order and held that evidence brought on record from the investigation is the standard proof. The preponderance of probability is applicable in such cases. The above case law is clearly applicable to the present case. Appellants relying on case laws are distinguishable and related to smuggling of contraband. The present case relates to attempt to export of Indian currency in violation of Customs Act and FEMA. Therefore, appellants are liable for penalty under Section 114. However, taking into overall facts and circumstances of the case and also considering the acquittal of appellant in prosecution, I reduce the penalty from Rs.4 lakhs to Rs.2 lakhs (Rupees Two lakhs only) imposed on Shri Kirankumar and the penalty from Rs.1 lakh to Rs.10,000/- (Rupees ten thousand only) on Shri Anwar Aneesur Rahman, the second appellant. Accordingly, the appeals are partly allowed with reduction of penalty as above.
(Operative part of the order pronounced in open court on 18.3.2015) (R. PERIASAMI) TECHNICAL MEMBER gs 5