9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (6) TMI 989 - AT - CustomsConfiscation of foreign currency - Penalty - Redemption fine - Held that - There is no finding in the impugned order except retracted statement of Shri PKJ. There was no cogent evidence brought on record to show the involvement of the appellant in any manner in giving illegally any currency to Shri PKJ and non-disclosure by department as to how the seized and the allegedly exported foreign currency was illegally procured by the appellant - The genuineness of CDF for USD 70,000/- is not in doubt. The seized currency recovered from Shri PKJ is clearly identifiable with the CDF also recovered at the spot from his possession. We find that penalties have been imposed on Shri Satish Choudhary on the basis of inculpatory statement made by Shri PKJ which was retracted within 24 hours and there is no corroborative statement made by Shri Satish Choudhary and no material has been found during the course of investigation against Shri Satish Choudhary to prove that Shri Satish Choudhary has handed over the foreign currency to Shri PKJ. Therefore, as held by the Hon ble apex court in the case of Vinod Solanki 2008 (12) TMI 31 - SUPREME COURT and in K.I. Pavunny v. Asst. Collector (HO), Central Excise Collectorate, cochin 1997 (2) TMI 97 - SUPREME COURT OF INDIA that a find of fact was arrived at that the confession was voluntary in nature. Reliance therein for the purpose of arriving at the guilt of the accused was not only placed on the statement given under Section 108 of the Customs Act, 1962 but also on the deposition of evidences and it was also held law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such. As the findings are on the basis of statement of other and in the case of D. Bhoormal 1974 (4) TMI 33 - SUPREME COURT OF INDIA the hon ble apex has held that in case of penalty, the department has to prove that the person proceeded against was concerned with the smuggling or not. As the department has failed to establish that Shri OPJ was connected with the alleged smuggling of foreign currency, therefore no penalty is imposable on Shri CPJ. Therefore, the penalty on Shri OPJ is dropped. As the adjudicating authority has held that the foreign currency seized from Monalisa Forex Services Pvt. Ltd. is not liable for confiscation. However, M/s. Monalisa Forex Services Pvt. Ltd. is no where connected with Shri PKJ. Therefore, the foreign currency seized from Monalisa Forex Services Pvt. Ltd. cannot be adjusted against dues of other co-appellants. Accordingly, the adjustment of the foreign currency seized from M/s. Monalisa Forex Services Pvt. Ltd. against the dues of other co-appellants is not sustainable, hence set aside - Decided by the majority order.
Issues Involved:
1. Confiscation of foreign currency (USD 70,000) seized from Shri Pankaj Jhunjhunwala. 2. Imposition of penalties on Shri Pankaj Jhunjhunwala, Shri Satish Choudhary, and Shri Om Prakash Jhunjhunwala. 3. Confiscation of foreign currency allegedly smuggled on previous visits by Shri Pankaj Jhunjhunwala. 4. Confiscation of various foreign currencies seized from M/s Monalisa Forex Services Pvt. Ltd. and the residence of Shri Pankaj Jhunjhunwala. 5. Adjustment of seized foreign currency against penalties. Detailed Analysis: 1. Confiscation of Foreign Currency (USD 70,000) Seized from Shri Pankaj Jhunjhunwala: The Tribunal held that the foreign currency amounting to USD 70,000 seized from Shri Pankaj Jhunjhunwala is liable for confiscation under Section 113(d), (e), and (h) of the Customs Act, 1962, read with Section 6(3)(g) of FEMA, 1999. The majority opinion, however, diverged on whether the confiscation should be absolute or if redemption should be allowed. The Member (Judicial) allowed redemption on payment of a fine of Rs. 5,00,000, while the Member (Technical) argued for absolute confiscation. The Third Member concurred with the Member (Judicial), allowing redemption on payment of the fine. 2. Imposition of Penalties: - Shri Pankaj Jhunjhunwala: A penalty of Rs. 4,00,000 was imposed under Section 114(i) of the Customs Act, 1962, for the attempted smuggling of USD 70,000. - Shri Satish Choudhary: The penalties imposed were dropped. The Tribunal found that the inculpatory statement made by Shri Pankaj Jhunjhunwala, which implicated Shri Satish Choudhary, was retracted within 24 hours and lacked corroborative evidence. The Third Member agreed with this view, emphasizing the lack of material evidence against Shri Satish Choudhary. - Shri Om Prakash Jhunjhunwala: Penalties imposed were also dropped due to insufficient evidence linking him to the smuggling activities. 3. Confiscation of Foreign Currency Allegedly Smuggled on Previous Visits: The Tribunal set aside the confiscation of USD 3,50,000 allegedly smuggled out by Shri Pankaj Jhunjhunwala on previous visits. The decision was based on the absence of corroborative evidence to substantiate the claim that he smuggled this amount on earlier occasions. 4. Confiscation of Various Foreign Currencies Seized from M/s Monalisa Forex Services Pvt. Ltd. and the Residence of Shri Pankaj Jhunjhunwala: - The foreign currencies seized from M/s Monalisa Forex Services Pvt. Ltd. were not held liable for confiscation. The Tribunal directed their release. - Similarly, the foreign currencies seized from the residence of Shri Pankaj Jhunjhunwala were ordered to be released. 5. Adjustment of Seized Foreign Currency Against Penalties: The Tribunal found that the adjustment of the foreign currency seized from M/s Monalisa Forex Services Pvt. Ltd. against the penalties imposed on Shri Satish Choudhary and Shri Om Prakash Jhunjhunwala was not sustainable and set aside this adjustment. Majority Order: - The foreign currency of USD 70,000 is liable for confiscation but can be redeemed on payment of a redemption fine of Rs. 5,00,000. - A penalty of Rs. 4,00,000 is imposed on Shri Pankaj Kishore Jhunjhunwala under Section 114(i) of the Customs Act, 1962. - No penalties are imposed on Shri Satish Choudhary and Shri Om Prakash Jhunjhunwala. - The foreign currency seized from M/s Monalisa Forex Services Pvt. Ltd. is to be released within seven days of the receipt of the order. Separate Judgments: - Member (Technical): Argued for absolute confiscation of USD 70,000 and imposition of penalties on Shri Satish Choudhary. - Third Member: Concurred with Member (Judicial) on allowing redemption of USD 70,000 on payment of a fine and dropping penalties on Shri Satish Choudhary.
|
