Customs, Excise and Gold Tribunal - Mumbai
Abubackar H. Desai vs Collector Of Customs on 4 August, 1993
Equivalent citations: 1994(74)ELT334(TRI-MUMBAI)
ORDER R. Jayaraman, Member (T)
1. Both the appeals are against the same order in original No. SD/INT /AIU /2 /89 /9537 dated 16-9-1991.
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S/14-6-1/89 AIU
2. The facts of the case are that the appellant Shri Abubackar Desai was intercepted by the officers of Air Intelligence Unit, when he was going to board an Emirate Airlines flight to Dubai on 1-1-1989. On examination of the briefcase carried by him in the presence of panchas, it resulted in recovery of foreign currency totally equivalent to Indian Rs. 7,05,613/-. It was therefore alleged that this foreign currency was attempted to be exported to a foreign country without any declaration. Hence, in the adjudication proceedings held by the Addl. Collector, the appellant Shri Abubackar Desai was imposed a penalty of Rs. 2,50,000/- and the foreign currencies also were ordered confiscation. It is also necessary to mention that based on the evaluation made by Shri Desai, investigations were also carried out at Navsari, where certain goods of foreign origin were recovered and Indian currency valued at Rs. 2.70 lakhs was also recovered. The foreign goods were dealt with separately in another adjudication proceedings. But the Indian currency was sent to Bombay, which ultimately was released in the present adjudication order. In the investigations held at Navsari, it was also found that the other appellant Shri Jayesh Shah was allegedly concerned in introducing Shri Desai to the persons, from whom the foreign currencies were purchased by Shri Desai, which were eventually attempted to be exported. Hence in the adjudication held by the Addl. Collector, he also imposed a penalty of Rs. 75,000/- on Shri Jayesh Shah, the other appellant.
3. We heard both sides. Shri Willingdon Christian, representing Shri Abubackar Desai, only pleads for leniency in the quantum of penalty imposed having regard to the fact that the foreign currency was taken by him to pay for the business losses incurred by him abroad, and this amount has been lost to him. He is a non-resident Indian and he had incurred heavy losses in his business abroad. He does not challenge the liability to confiscation of the foreign currency. He also does not challenge the appellant's liability to penalty.
4. As regards Shri Jayesh Shah, Shri D.H. Shah the learned advocate pleads that even going by the allegation, Shri Shah was only concerned with introducing someone to Shri Desai from whom foreign currencies were alleged to have been purchased at Navsari. He had no role in the attempted export of these currencies at Bombay and hence he would not come under the purview of Section 114. He also took us through the provisions of Section 114 of the Customs Act. Shri Jayesh Shah also had no knowledge in regard to the currency to be exported. In the circumstances penalty under Section 114 is not legally justified. Besides, the appellant is only 16 years old with unsound mind. Hence he will not be in a position to deposit this penalty amount, in case the penalty is sustained.
5. Shri Singh, on the contrary, pleaded that the foreign currencies were attempted to be exported and Shri Shah assisted him in acquiring these foreign currencies.
6. After hearing both the sides we find that with regard to the confiscation of foreign currency and imposition of penalty on Shri A. Desai, the order is not challenged on merits and hence it is required to be confirmed. The plea of Shri Willingdon is only for extending leniency. Having regard to this plea and the ground urged in this regard, we are inclined to extend leniency and reduce the penalty to Rs.1.25 lakhs on Shri Abubackar Desai.
7. As regards Shri Jayesh Shah, we agree with Shri Shah that Section 114 of the Customs Act cannot be invoked for imposing penalty on this appellant, because the allegation against Shri Jayesh Shah is that he introduced the other appellant to some unauthorised money exchanger at Navsari. He could not be said to have abetted in the illicit export of currency through Bombay, when knowledge about the export or his presence at Bombay are not evident. In the circumstances, we set aside the order of penalty imposed on Shri Jayesh Shah. Both the appeals are disposed of in the above terms.