Custom, Excise & Service Tax Tribunal
Sri Syed Ghazanfar Raza Hussain vs -Kolkata(Admn Airport) on 29 November, 2024
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH - COURT NO. 1
Customs Appeal No. 75752 of 2021
(Arising out of Order-in-Appeal No. KOL/CUS/AIRPORT/AKR/523,524/2021 dated
07.07.2021 passed by the Commissioner of Customs (Appeals), 3 rd Floor, Custom
House, 15/1, Strand Road, Kolkata - 700 001)
Shri Ayan Das : Appellant
S/o. Prosenjit Das,
Res: Chaitali Nibas Sultanpur, Gowalpara,
P.O.: Italigacha, Police Station: Dum Dum,
Kolkata - 700 079
VERSUS
Principal Commissioner of Customs (Airport) : Respondent
N.S.C.B. International Airport, Kolkata - 700 052
AND
Customs Appeal No. 75759 of 2021
(Arising out of Order-in-Appeal No. KOL/CUS/AIRPORT/AKR/523,524/2021 dated
07.07.2021 passed by the Commissioner of Customs (Appeals), 3 rd Floor, Custom
House, 15/1, Strand Road, Kolkata - 700 001)
Shri Syez Ghazanfar Raza Hussain : Appellant
S/o. Syed Jafar Hussain,
Res: Imam Bazaar Road-9,
P.O.: Chawkbazar, Police Station: Chinsurah,
District: Hooghly - 712 103
VERSUS
Principal Commissioner of Customs (Airport) : Respondent
N.S.C.B. International Airport, Kolkata - 700 052
APPEARANCE:
Shri S.K. Mohapatra, Advocate
Shri Sudipta Ghosh, Advocate
For the Appellant(s)
Shri Faiz Ahmed, Authorized Representative for the Respondent
CORAM:
HON'BLE SHRI R. MURALIDHAR, MEMBER (JUDICIAL)
HON'BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL)
FINAL ORDER NOs. 77674-77675 / 2024
DATE OF HEARING: 26.11.2024
DATE OF DECISION: 29.11.2024
Page 2 of 7
Appeal No(s).: C/75752 & 75759/2021-DB
ORDER:[PER SHRI K. ANPAZHAKAN] Customs Appeal No. 75752 of 2021 has been filed by Shri Ayan Das, against confirmation of the penalty imposed on him in the impugned Order-in-Appeal No. KOL/CUS/AIRPORT/AKR/523,524/2021 dated 07.07.2021 passed by the Commissioner of Customs (Appeals), Kolkata. In the impugned order, the Ld. Commissioner (Appeals) has upheld the order of the Additional Commissioner of Customs, AIU, NSCBI Airport, imposing a penalty of Rs. 5,00,000/- (Rupees Five Lakh only) under Section 112(a) and 112(b) of the Customs Act, 1962, in connection with smuggling of one cut piece gold bar of foreign origin weighing 645.500 grams valued at 20,07,505/-.
1.1. Customs Appeal No. 75759 of 2021 has been filed by Shri Syed Ghazanfar Raza Hussain against confirmation of the penalty imposed on him in the impugned Order-in-Appeal No. KOL/CUS/AIRPORT/AKR/523,524/2021 dated 07.07.2021 passed by the Commissioner of Customs (Appeals), Kolkata. In the impugned order, the Ld. Commissioner (Appeals) has upheld the order of the Additional Commissioner of Customs, AIU, NSCBI Airport, imposing penalty of Rs. 5,00,000/- (Rupees Five Lakh only) under Section 112(a) and 112(b) of the Customs Act, 1962 upon the appellant, in connection with smuggling of one cut piece gold bar of foreign origin weighing 645.500 grams valued at 20,07,505/-
1.2. As both the appeals emanate from the same Order-in-Appeal, both are taken up together for decision by a common Order.
Page 3 of 7Appeal No(s).: C/75752 & 75759/2021-DB
2. The facts of the case are that at the relevant point of time, the appellant no. 1 viz. Shri Ayan Das was working as Sales Officer in a store called "AVA (Merchandiser)" located within the Airport premises and the appellant no. 2 viz. Shri Syed Ghazanfar Raza Hussain used to work as an Assistant Store Manager in the same store. On 03.04.2018, upon instruction from Shri Syed Ghazanfar Raza Hussain, Shri Ayan Das has received one cut piece of gold bar of foreign origin weighing 645.500 grams valued at 20,07,505/- from an incoming passenger from Bangkok, by name Mohammed Zuhair Abbas. On receipt of the gold in the toilet of the International Arrival Immigration Area, Shri Ayan Das concealed the same in his shoe, with a view to bring it outside the Airport premises and to deliver it to one Mohammad Arif.
2.1. Both the appellants Shri Ayan Das and Shri Syed Ghazanfar Raza Hussain were intercepted by the officers of the Airport Intelligence Unit (AIU) and the impugned gold was recovered from the possession of the Appellant Shri Ayan Das. His statement was recorded. As he was not a passenger and he was not eligible to bring the gold into the country, the said gold concealed by Shri Ayan Das in his shoe was recovered and seized. Statements were also recorded from the passenger Mohammed Zuhair Abbas and Shri Syed Ghazanfar Raza Hussain.
3. After completion of investigation, a Show Cause Notice No. 70/ADC/2018 dated 28.09.2018 was issued proposing confiscation of the impugned gold for contravening Sections 111(d), 111 (i) and 111 (l) of the Customs Act, 1962 and penalty was also proposed under Section 112(a) and 112(b) of the said Act, on both the appellants. The said Notice was adjudicated by the Ld. Additional Commissioner of Customs, AIU, Page 4 of 7 Appeal No(s).: C/75752 & 75759/2021-DB NSCBI Airport, who passed the order confiscating the gold. He also imposed penalty of Rs. 5,00,000/- on both the appellants herein, under Sections 112(a) and 112(b) of the Customs Act, 1962. On appeal, the Ld. Commissioner (Appeals) upheld the penalty imposed on both the appellants. Aggrieved against the confirmation of penalties, both the appellants have filed these appeals.
4. The Ld. counsel appearing on behalf of both the appellants submits that both of them do not have any antecedents of smuggling activities in the past; they were neither the owners nor the beneficiaries of the impugned gold. The Ld. Counsel further submits that no investigation was carried out in this regard with Shri Mohammad Arif, who is the actual beneficiary. He submits that after the incident, both of them have lost their jobs and have been suffering tremendous mental trauma. It is mentioned that Shri Ayan Das, Appellant No. 1, has been under the treatment of neuro and psychiatric physicians.
4.1. The Ld. counsel further submits both the appellants have been deprived of the opportunity of making an effective defence against the allegations made against them in the impugned Show Cause Notice as the documents relied upon by the department were not supplied to them.
4.2. It is also his submission that the goods involved in this offence is one cut piece of gold bar of foreign origin weighing 645.500 grams valued at 20,07,505/-; without knowing the implications, they have fallen prey to some quick money that can be made by helping the passenger to take the gold outside the Airport. He submits that the penalty imposed on them does not commensurate with the role played by them in the Page 5 of 7 Appeal No(s).: C/75752 & 75759/2021-DB alleged offence; besides, conditions precedent for invocation of Section 112(a) and Section 112(b) also do not satisfy in this case. Accordingly, he prayed for taking a lenient view and for reducing the penalty imposed on the appellants.
5. The Ld. Authorized Representative appearing for the Revenue reiterated the findings in the impugned order. He submitted that both the appellants have misused the Entry Pass/Identity Card given to them; their role in the offence has been established beyond doubt. Accordingly, he justified the penalty imposed on them.
6. Heard both sides and perused the appeal records.
7. We observe that the appellants viz. Shri Ayan Das and Shri Syed Ghazanfar Raza Hussain were working as Sales Officer and Assistant Stores Manager respectively in a store called "AVA (Merchandiser)"
located within the Airport premises. For going in and working in the store, both them of them were given an Entry Pass/Identity Card. The appellants misused the Identity Card/ Entry Pass given to them and helped the passenger in the smuggling activity. Both the appellants were intercepted by the officers of the Airport Intelligence Unit and the impugned gold was recovered from the possession of the Appellant Shri Ayan Das. The statements recorded from them clearly establish that one cut piece of gold bar of foreign origin weighing 645.500 grams valued at 20,07,505/- was received by the appellant namely, Shri Ayan Das from an incoming passenger from Bangkok, by name, Mohammed Zuhair Abbas. It is also noticed that on receipt of the gold in the toilet of the International Arrival Immigration Area, Shri Ayan Das concealed the Page 6 of 7 Appeal No(s).: C/75752 & 75759/2021-DB same in his shoe, with a view to bring it outside the airport and to deliver it to one Mohammad Arif. As he was not a passenger and he was not eligible to bring the gold into the country, his role in the smuggling activity is established beyond doubt. Syed Ghazanfar Raza Hussain, being his superior in the store, working as Assistant Stores Manager, instructed Shri Ayan Das to conceal the gold in his shoe and smuggle it outside the airport. Thus, we observe that he played the role of an abettor in the alleged offence. Thus, we hold that both the appellants are involved in the smuggling of the gold and hence they are liable for penalty under Section 112(a) and Section 112(b) of the Customs Act, 1962 7.1. From the records available, we observe that both the appellants do not have any antecedents of smuggling activities in the past. We also observe that they were neither the owners nor the beneficiaries of the impugned gold. We also find that no investigation was carried out in this regard with Mohammad Arif, who is the actual beneficiary. The Ld. counsel for the appellant also informed that after the incident, both of the appellants have lost their jobs and have been suffering tremendous mental trauma. We also observe that both of them are carriers, working for small benefits. They are not the actual beneficiaries of the smuggling activity.
7.2. Considering the facts and circumstances of the case and the role played by the appellants, we observe that the penalty imposed on the appellants is not commensurate with the role played by them. Accordingly, we observe that the penalty imposed on both of them can be reduced.Page 7 of 7
Appeal No(s).: C/75752 & 75759/2021-DB
8. Taking into consideration of the role played by them, we reduce the penalty imposed on both the appellants from Rs. 5,00,000/- (Rupees Five Lakhs only) each to Rs. 1,00,000/- (Rupees One Lakh only) each, under Section 112(a) and Section 112(b) of the Customs Act, 1962. The appeals filed by the appellants are disposed on the above terms.
(Order pronounced in the open court on 29.11.2024) Sd/-
(R. MURALIDHAR) MEMBER (JUDICIAL) Sd/-
(K. ANPAZHAKAN) MEMBER (TECHNICAL) Sdd