Custom, Excise & Service Tax Tribunal
Shri Sushil Kumar Jugal Ginoria vs Commissioner Of Customs (Airport), ... on 2 December, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. C/299 & 488/07 (Arising out of Order-in-Original No. COMMR/PVR/ADJN/26/2006 dated 29.1.2007 passed by the Commissioner of Customs, CSI Airport, Mumbai). For approval and signature: Honble Shri Raju, Member (Technical) ======================================================
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 : Yes 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? ====================================================== Shri Sushil Kumar Jugal Ginoria M/s Aramex India Pvt. Ltd. Appellant Vs. Commissioner of Customs (Airport), Mumbai Respondent Appearance: None for Appellant Shri Chatru Singh, AC (AR) for Respondent CORAM: SHRI RAJU, MEMBER (TECHNICAL) Date of Hearing: 02.12.2016 Date of Decision: 29.12.2016 ORDER NO. Per: Raju
These appeals are filed by a Courier company and sub-agent of the courier company against imposition of penalty in a case involving export of Indian currency by courier. The penalty has been imposed by an order of Commissioner under section 114(i) of the Customs Act, 1962. Aggrieved by the said order, the appellants are before Tribunal.
2. No one appeared for the appellants on last two occasions. In the grounds of appeal, Shri Sushil Kumar Jugal Ginoria, sub-agent of M/s Aramex India Pvt. Ltd. has argued that the currency was meant to be sent within the country, however, due to certain error it was forwarded to the courier company M/s Aramex India. He argued that the said currency was stuffed in the parcel of textile to avoid any theft or pilferage. It has been argued that the statements were obtained forcibly from the employees. It was argued that charges contained in the impugned show-cause notice have been made out on the alleged retracted statements of the appellants. He argued that the statement of two employees are absolutely identical and therefore clearly indicated that the same were dictated. It was argued that Shri Vinshnu Gosavi, his employee never knew about the containment of Indian currency in any parcel then whether meant to be forwarded upcountry or abroad, but he was steered to give statement accordingly by the customs officers. It has been argued that both the employees of the appellant namely, Shri Dharam Shankar Shukla and Shri Vishnu Sahadev Gosavi in statements recorded on 6.4.2005 and 5.4.2005 have stated that the appellant had called the office land-line number from his mobile phone and instructed each of them to receive 4 packages from Shri Ismu Pottiyal. Accordingly they had received the packages and forwarded to Aramex Courier Pvt. Ltd. It was also argued that he was forced to admit that he had earlier lied about his employees receiving the packages from Ismu Pottiyal in his absence on 5.4.2005, but rather he had personally received the said packages from Ismu Pottiyal and he was fully aware of the concealment of Indian currency of Rs.45 lakhs therein. It has been argued that Customs officer merely waxed to fix him without any evidence. It has been argued that no provisions of Customs Act, 1962 or any other law has been referred in the show-cause notice to support assertion that the currency was prohibited for exportation. The appellant has also asserted that Section 6(3)(g)of FEMA, 1999 has been wrongly invoked in their case. The said section reads as follows: -
EXPORT AND IMPORT OF INDIAN CURRENCY AND CURRENCY NOTES:-
(1) Save as otherwise provided in these regulations, any person resident in India, -
(a) may take outside India (other than to Nepal and Bhutan) currency notes of Government of India and Reserve Bank of India notes upto an amount not exceeding Rs.5,000/- per person;
(b) may take or send outside India (other than to Nepal and Bhutan) commemorative coins not exceeding two coins each. It has been argued that while taking the Indian currency not exceeding Rs.5000/- is allowed, there is no prohibition in sending the currency not exceeding Rs.5,000/-. In view of the above, it has been argued that Section 113(b) and (h) cannot be invoked against the appellant. He has sought release of the seized Indian currency and waiver of personal penalty.
2.1 The second appellant namely, the courier company, in their appeal has argued that there was no act or omission on their part in rendering the goods liable to confiscation under the provisions of Section 113 of the Customs Act, 1962 and, therefore, penalty under Section 114 cannot be imposed on the appellant. It has been argued that they had never aided or abetted M/s Ocean Enterprises in the smuggling activities as alleged in the show-cause notice. No evidence to that effect has been produced. It is argued that all the packages through which Indian currency was allegedly smuggled were examined by the Customs authorities as well. It is argued that the Commissioner has erred in holding that the regulation 13(c) of the Courier Import and Export (Clearance) Regulations, 1998 has been violated by failing to exercise the due diligence. It has been argued that by the way the goods have been packaged, it has been impossible to detect the currency.
3. Learned AR relied on the impugned order.
4. I have considered the case records. Detail investigations have been conducted and statements have been recorded. After the export consignment booked by M/s Aramex, courier company was found to contain Indian currency amounting to Rs.11,12,400/- in 11 takas packed in gunny bags. Similarly, in another gunny bag Indian currency amounting to Rs.11,10,000/- was found concealed in another 11 takas of fabrics. The same was seized under the Panchnama. The said consignment was booked for Aramex Dubai through Emirate Airlines. From the courier company, it was found that the said packages was booked by Mr. Sushil Kumar Jugal Ginoria, their co-courier agent. From the inquiry, it was found that the said packages were booked in the name of Mr. Kasam Nazeeb, Sharjah by the consignor M/s Sanjari Textiles Pvt. Ltd. On the inquiry from office of Shri Sushil Kumar Ginoria, it was revealed that 4 packages were booked for 44 packets and 11 packets were wrapped in each of the 4 gunny bags. Other two packets of gunny bags were also intercepted and on examination it was found to contain Rs.22,30,000 hidden in those consignments, which was also booked by Sanjari Textiles Pvt. Ltd. to Shri Kasam Nazeeb. Total currency of Rs.44,52,400/- was seized. Detail investigations were conducated and statements of the employees of Shri Sushil Kumar Ginoria, namely, Shri D.S. Shukla and Shri Vishnu S Gosavi were recorded along with statement of Shri Sushil Kumar Ginoria. During the recording of statements, it was admitted that earlier also consignments have been sent containing Rs.3 crores smuggled by Shri Mohd. Afzal Hussain and Md. Ismail alias Ismu Pottiyal. Shri Sushil Kumar Ginoria in his statement admitted that he was involved in illegal export of Indian currency. I find that all the defence raised by the appellants are the same which were raised before the original adjudicating authority. The Commissioner has observed as follow in respect of the statement of the appellant: -
3.11 I observe that in the statement recorded on 06.04.05, Shri Sushil Kumar Ginoria submitted that he was not present in his office situated at Kolsa Street, Pydhonie, Mumbai when the seized packages were received by his staff from one Vijay of Speedways Courier. Further, he also stated that in his absence his employee Shri Dharam Shanker Shukla received and after completing the formalities of receiving, the said packages were taken to the office of M/s. Aramex (I) Pvt. Ltd. and Airway Bill was cut and the parcels wire booked with M/s. Aramex (I) Pvt. Ltd. He also stated that he was receiving 15-20 such parcels per month from M/s. Speedways Courier on cash payments. Further, he could not give the telephone number or office address of M/s. Speedways Courier company.
3.12 However. I find that in the statement recorded on 07.04.05, Shri Sushil Kumar Ginoria made certain material changes and admitted that he had made deliberately false statement earlier on 06.0* )5. He admitted that the parcels were received by him personally on 05.04.05 as he was very much present in the office. Further, he also admitted that the four parcels' tinder seizure were containing the Indian currency of Rs. 45 Lakhs in concealed form. He also admitted regarding involvement of Mohammed Afzal Hussain and Ismu Pottiyal. He had also admitted that earlier also he had helped to export consignments containing Indian currency ranging from Rs. 5 lakhs to Rs. 45 Lakhs. He also admitted that since January 2005 he had received 40 such consignments from the said Ismu Pottiyal. He further confessed that all the consignments received from Ismu Pottiyal were entered in his office register is received from M/s. Speedways Courier though no such company was in existence He had also submitted the Mobile number as well as residential address of Ismu Pottiyal.
3.13 Further statement of Shri Sushil Kumar Ginoria was recorded on 12.04.05 in the jail premises. One more statement of Shri Sushil Kumar Ginoria was recorded on 20.04.05, wherein he admitted that in his earlier statements, he had given all the facts and disclosed the names of Mohammed Afzal Hussain and Ismu Pottiyal who were the main persons in the smuggling of Indian currency in the instant case. He also accepted that he had taken the flat on rent at B-503, Shiv Surabhi Aptt., Thakur Village, Kandivali (E). Mumbai - 400 101 on leave-license basis by him in the month of May 2004 as per the request made by Shri Mohd. Afzal Hussain and that he vacated it and allowed Ismu Pottiyal to stay there and that he had taken the flat No. A-404. Gourav Shikhar at Thakur Village, Kandivali (E), Mumbai on leave and license basis in the month of April 2005 through the estate agent. He also identified his photograph and signature bearing on the said licensee bio-data form and admitted that he himself had additionally written Ismu Pottiyals name as his family member in the said form and handed over it to the estate agent, who subsequently submitted it to Samta Nagar Police Station as per the procedure.
3.14 I observe that all the above statements have brought out the role of Sushil Kumar Ginoria in the illegal export of Indian currency in the past as well as in the present case It appears from the records that Sushil Kumar Ginoria has filed two retractions before the Court of Hon'ble Chief Metropolitan Magistrate, Mumbai wherein he had retracted the statements dated 06.04.05 and 07.04.05 vide retraction dated 07.04.05. Further, he has again retracted the statement dated 12.04.05 vide retraction dated 15.04.05. In the retraction dated 07.04.05, he had stated that the statements were dictated to him and he was scared that he would be beaten by the Customs Officers (and hence he wrote the statements). In his further retraction dated 15.04.05, wherein he had retracted statement dated 12.04.05, he stated that he did not know Ismu Pottiyal or Mohmd. Afzal Hussain and it were the Custom Officers who gave their names to his employees.
3.15 I observe that in his statement dated 06.04.05, Sushil Kumar Ginoria deliberately suppressed certain material facts and attempted to mislead the investigation. Subsequently, as the true facts started coming out through the statements of other witnesses he admitted and confessed that he had mislead the investigation and also brought out the role of Mohd. Afzal Hussain and Ismu Pottiyal. This fact clearly brings out that his statements were not recorded forcibly by the Customs Officers but he was free to give his voluntary statements and he indeed gave voluntary statements including misleading statements. Secondly, the department has successfully corroborated the facts brought out in his statements and it is proved that he was involved in the illegal export of Indian currency alongwith Mohmd. Afzal Hussain and Ismu Pottiyal. Further, I also observe that the department has promptly filed the rebuttals dated 20.04.05 and 26.04.05 before the Court of Hon'ble C.M.M. I find that the statements of the appellant are corroborated by the statement of his brother and his employees and has been examined in para 3.16 and 3.17 as follows: -
3.16 Shri Santosh Kumar Ginoria, brother and partner of Shri Sushil Kumar Ginoria in his statement dated 07.04.05 had also admitted that Mohmd. Afzal Hussain and Ismu Pottiyal were sending lie consignments to Dubai through their courier company He also admitted that they were also in touch with his brother but they avoided him. Regarding their activities, he confessed that he was suspicious about them but his brother (Sushil Kumar Ginoria) told him that they were sending textile pieces to Dubai for printing net and further told him not to worry about it.
3.17 Further. Shri Dharam Shanker Shukla in his statement dated 08.04.05 had admitted that he had given zerox copy of His ration card to Ismu Potiyyal as per his employer Sushil Kumar Ginorias instructions. Investigations have further brought out that the Mobile number 9820736301 in use of Shri Ismu Pottiyal was in the name of Dharam S. Shukla, the employee of Sushil Kumar Ginoria. Further, there were frequent calls and conversations between Mobile telephone number 9869067403 and office telephone number 56.430585 and residence telephone number 28854115, all belonging to Sushil Kumar Ginoria. It was also found out that there were various incoming calls from UAE. including the telephone number 971504715761 which was found to be the contact number of Mr. Kasam Nazeeb of Sharjah, the receiver of consignments under Seizure. From the above, it is apparent that the appellant was fully aware of the activity of illegal smuggling of Indian currency. Argument regarding the dispatch of the said consignment by mistake for export instead of upcountry has also been dealt adequately by the Commissioner in para 3.19 and 3.20 in his order, which is reproduced below: -
3.19 It is not disputed that the currency under seizure was found concealed in the packages. The purpose of concealment was to illegally export the said currency. Regarding the said concealment, 1 find that Advocate for Shri Sushil Kumar Ginoria has filed his submissions vide his reply dated 22.11.06. It was submitted that a) noticee was in the business of Courier as well as in the Angadia business and the parcels containing seized currency were actually meant to be concealed by him upcountry locally and the said currency was stuffed in the parcels of textiles for the purpose of safety so as to avoid by theft or pilferage. In short, it was deliberately concealed for inland courier, which by mistake was sent to or attempted to be sent to Dubai. However, after the recovery and seizure of Indian currency from those parcels, the Customs Officers refused to accept their say.
3.20 I find that this novel argument and defence, first time taken on 22.11.06 since the date of seizure is clearly an afterthought. Noticee had filed two retractions. Further, he had ample opportunity to submit this novel story even before the Court of Chief Metropolitan Magistrate, Mumbai at the various stages of remand and bail applications. However, he has chosen not to do it simply because even to corroborate this story, he had to give the address of his so called upcountry consignee and the local consignor. Further, it is not clear as to why the owners failed to come forward for personal hearing at least through legal representative if they were going to send the currency within India only. I do not find any merit in the said defence and do not understand as to how the said defence will help his case at this belated stage and I therefore reject the said defence as totally baseless and concocted. The evidence collected by the Department proves the case beyond any doubt and exposes the entire sequence of systematic smuggling of Indian currency over a period of time by the noticees. I also find that the impugned order adequately deals with the argument that Indian currency is not prohibited goods but restricted goods in para 3.24 and 3.25 of the impugned order.
5. From the above discussion, I find that each argument that the appellant has taken in Tribunal was taken before Commissioner and has been adequately dealt with and dismissed. In view of the above, the appeal of Shri Sushil Kumar Ginoria is dismissed.
6. As regards the appeal of the courier company M/s Aramex India Pvt. Ltd., it has been argued that there was no act of omission or commission on part of the appellant in alleged smuggling of Indian currency. They did not have the knowledge of the currency hidden in the consignments. I find that the impugned order relies solely on regulation 13(c) of the Courier Import and Export (Clearance) Regulations, 1998 which requires the courier company to exercise due diligence. I find that the show-cause notice alleges that the export of such currency has been done on numerous occasions and even Customs have failed to detect the same. The currency has been hidden well in the takas of fabrics. In these circumstances, it may be difficult to detect the currency. However, the fact remains that there was a failure on part of M/s Aramex India Pvt. Ltd. Keeping in view the evidence produced, I am of the opinion that the penalty imposed of Rs.2 lakhs on appellant is higher side and the same is reduced to Rs.50,000/- only.
(Pronounced in Court on 29.12.2016) (Raju) Member (Technical) Sinha 8 Appeal No. C/299 & 488/07