Customs, Excise and Gold Tribunal - Delhi
Mohd. Zaheer Ahmed vs Commissioner Of Customs on 27 January, 2003
Equivalent citations: 2003(153)ELT571(TRI-DEL)
ORDER P.G. Chacko, Member (J)
1. The appellant in this case is aggrieved by the imposition, by the Commissioner of Customs under Section 112(b) of the Customs Act against him, of a penalty of Rs. 1 lakh.
2. Examined the record. The appellant was one of the 13 persons who were intercepted aboard a bus heading towards Muzaffarpur from Sitamarhi, by officers of Customs. Foreign goods were recovered from all the persons except the appellant. Fake Indian currency was recovered from two persons including the appellant. Believing that the goods were being illegally imported from Nepal into India and hence liable to confiscation, the officers seized the goods under a Panchnama. Statements of all the persons were recorded. Some follow up investigations also were conducted. On the basis of the investigative results, the department by show cause notice called upon the appellant and others to show cause why, inter alia, penalties should not be imposed on them under Section 112(b) of the Customs Act, for their alleged involvement in the smuggling of contraband goods. The notices contested the proposal for imposition of penalty. The jurisdictional Commissioner of Customs, who adjudicated the dispute, imposed a penalty of Rs. 1 lakh on the appellant, holding him to be an accomplice in the smuggling activities. Hence the present appeal.
3. The findings against the appellant as contained in the impugned order are extracted below :-
"Notice No. 2 Md. Zaheer Ahmad (1) He is one of the 13 persons apprehended by the officers of Sitamarhi Customs on 11-5-2000 and one of the two from whose possession counterfeit currency was recovered. (2) He was arrested under Section 104 of the Customs Act, 1962.
(3) From his possession counterfeit Indian currencies - (a) 5985 pcs. of one hundred denomination and (b) 3799 pcs. of five hundred denomination (totally Rs. 24,98,000/-) were recovered. (4) In his statements under Sections 107 and 108 of the Customs Act, 1962, he stated that his clothes were kept in the bag containing counterfeit Indian currencies by Md. Maqbool. But this assertion does not appear to be convincing. (5) His reply to the show cause notice appears to be afterthought and does not hold good.
As such, the complicity of Md. Zaheer Ahmad in the smuggling activities of the instant case is established. Hence, I hold him as liable to penalty under Section 112(b) of the Customs Act, 1962."
4. Heard both sides. Ld. counsel for the appellant submits that, admittedly, no foreign goods were recovered from the appellant and, therefore, any penalty under Section 112 of the Customs Act was not warranted. Counsel refers to the allegation that fake currency was recovered from the appellant's possession. He submits that the appellant was not aware of the presence of fake currency in the bags carried by him and had nothing to do with those goods. He also refers to the statements given by the appellant under Sections 107 and 108 of the Customs Act. However, no copy of any of the statements is available on record. Even a copy of the show cause notice is not available. Ld. counsel, finally, pleads for a lenient view against the appellant in the facts and circumstances of the case. Ld. DR reiterates the findings recorded by the Commissioner. He submits that the evidence on record would justify the penalty imposed on the appellant. Many of the notices had pleaded guilty before the competent Courts. The statements of the appellant brought out his knowledge of the fact that he was in possession of counterfeit Indian currency and, therefore, under Section 112(b) of the Act, a penalty was liable to be imposed on him. The DR prays for rejecting the appeal.
5. I have examined the rival submissions. The Commissioner has found that counterfeit currency was recovered from the appellant by the officers of Sitamarhi Customs. 5985 pcs. of such currency of one hundred denomination and 3799 pcs. of such currency of five hundred denominations were so recovered. This fact is not in dispute. It was also found by the Commissioner that, in the statements of the appellant, he had stated that he had no knowledge of the presence of counterfeit currency in the bag in which he had kept his clothes. The Commissioner did not accept this explanation of the party. The appellant is aggrieved by this non-acceptance of the appellant's statements. However, ld. counsel has not been able to substantiate this challenge by producing copies of the statements. In the result, the knowledge of the appellant about the presence of counterfeit Indian currency in his possession has to be found from the evidence on record. In any case when the currency was recovered by the officers the appellant was aware of his being in possession of such currency. The appellant has no case that counterfeit Indian currency is not liable to confiscation under Section 111 of the Customs Act. On the other hand, he has clearly stated in the memorandum of appeal that he has no objection to such currency being confiscated. In the result, the sine qua non for confiscation under Section 112(b) of the Customs Act has been fulfilled in this case. The Commissioner has imposed a penalty of Rs. 1 lakh on the appellant, while he has imposed penalties of Rs. 10,000/- each only on many of the other notices notwithstanding the fact that his finding against them is no different from that against the appellant. There appears to be a glaring element of discrimination in the matter. In the facts and circumstances of the case, I am of the view that the penalty of Rs. 1 lakh is too harsh to match the offence found against the appellant. It is reduced to Rs. 50,000/-. The appeal stands disposed of in these terms.