2005 (12) TMI 321 - AT - Customs

Summary

Issues Involved:
1. Violation of Principles of Natural Justice due to non-supply of documents.
2. Incorrect facts in the Show Cause Notice.
3. Ownership and possession of the seized currency.
4. Evidence supporting the alleged attempt to export currency.
5. Validity of statements given by the appellants under coercion.
6. Applicability of Section 113(d) and Section 114(i) of the Customs Act, 1962.
7. Differentiation between 'preparation' and 'attempt' to export.

Issue-wise Detailed Analysis:

1. Violation of Principles of Natural Justice:
The appellants argued that the non-supply of crucial documents such as the statement recorded by the CISF officer, the Station Diary, and the Register maintained at the X-ray machine, violated the Principles of Natural Justice. These documents were requested but not provided, which could have potentially proved that the seized currency was not in the appellant's bag during the security check.

2. Incorrect Facts in the Show Cause Notice:
The appellants contended that the Show Cause Notice did not accurately present the facts. They detailed a sequence of events indicating that the suitcase in question was checked and cleared at the security checkpoint, and later, the first appellant was coerced into claiming ownership of another suitcase under duress.

3. Ownership and Possession of the Seized Currency:
The appellants denied ownership of the currency found in the unclaimed suitcase. The first appellant's visiting card found in the suitcase was argued to be insufficient evidence of ownership. The appellants retracted their initial statements claiming ownership, asserting that these statements were made under coercion.

4. Evidence Supporting the Alleged Attempt to Export Currency:
The department failed to provide evidence that the appellants brought the currency from Mumbai to Hyderabad or received it at Hyderabad Airport. There was no proof that the first appellant attempted to export the currency, as the suitcase was found unclaimed in the security area and not in her possession or on the aircraft.

5. Validity of Statements Given by the Appellants Under Coercion:
The appellants retracted their statements made under Section 108 of the Customs Act, claiming they were obtained under threat and coercion. The Tribunal noted inconsistencies in the statements and the lack of corroborative evidence, questioning the voluntariness of these statements.

6. Applicability of Section 113(d) and Section 114(i) of the Customs Act, 1962:
The Tribunal emphasized that for Section 113(d) to apply, it must be shown that the goods were brought within the customs area for the purpose of exportation. The absence of evidence proving that the appellants brought the currency into the customs area or attempted to export it meant that the conditions for invoking Section 113(d) were not met. Consequently, the penalties under Section 114(i) were deemed unsustainable.

7. Differentiation Between 'Preparation' and 'Attempt' to Export:
Citing the Supreme Court's decision in the case of State of Maharashtra v. Mohd. Yakub, the Tribunal highlighted the distinction between 'preparation' and 'attempt.' The Tribunal concluded that the appellants' actions did not constitute an 'attempt' to export, as the currency was not found in their possession or on the aircraft, and there was no intervention by customs officials to thwart an export attempt.

Conclusion:
The Tribunal found significant gaps in the investigation, including the unexplained abandonment of the suitcase and the lack of evidence linking the appellants to the currency. The non-supply of crucial documents further weakened the department's case. Consequently, the penalties imposed under Section 114(i) were set aside, and the appeals were allowed. The Tribunal also noted that the appellants had no objection to the confiscation of the currency itself.