2010 (5) TMI 427 - HC - Customs

Smuggling foreign currency out of India - Acquisition or possession of the foreign currency - petitioner Harinder Pal Singh Shergill, who was Pilot / Captain of Air India - The petitioner tried to explain that he was carrying the currency at the instance of Kuttie. One Yakub Mohammed contacted him and delivered the cloth belt containing the currency to be carried to Bahrain for Kuttie. He also gave him one extra cloth belt to be used in case of any damage to his belt. The additional belt was also recovered from his baggage and seized. He also admitted that he brought the currency tied to his waist to the airport by his personal Fiat car - Held that - Tribunal has dealt with the real controversy and rightly decided the appeal in correct perspective, vide which, a penalty of Rs.10 lacs imposed on the petitioner was reduced to Rs.5 lacs. Thus, the contrary argument, stricto sensu deserves to be and are hereby repelled under the present set of circumstances. - Adjudicating Authority provided adequate opportunities to the petitioner before passing the impugned order and the Tribunal has rightly dismissed his appeal in the obtaining circumstances of the case.

Issues:
1. Allegations of smuggling foreign currency out of India in violation of the Act.
2. Confiscation of currency, articles, and car by the Adjudicating Authority.
3. Imposition of a penalty on the petitioner under section 114 of the Act.
4. Appeal filed by the petitioner against the impugned order.
5. Reduction of penalty by the Customs, Excise and Gold (Control) Appellate Tribunal.
6. Filing of a petition under section 130A of the Act in the High Court.
7. Reference of a question of law to the High Court by the Appellate Tribunal.
8. Determination of whether adequate opportunity of hearing was granted to the petitioner.

Analysis:

1. The petitioner, a Pilot/Captain of Air India, was apprehended with a significant amount of undeclared foreign currency. He admitted to knowingly carrying the currency without proper documentation, leading to allegations of smuggling by the revenue authorities.

2. The Adjudicating Authority issued a notice for the confiscation of the currency, articles, and car used for smuggling. Despite the petitioner's denial and claims of innocence, the Authority proceeded with the confiscation and imposed a penalty of Rs.10 lacs under section 114 of the Act.

3. The petitioner appealed the impugned order, resulting in the Customs, Excise and Gold (Control) Appellate Tribunal reducing the penalty from Rs.10 lacs to Rs.5 lacs. The Tribunal acknowledged the attempt to smuggle currency but considered mitigating factors in reducing the penalty.

4. Unsatisfied with the Tribunal's decision, the petitioner filed a petition under section 130A of the Act in the High Court, seeking a reference of a question of law arising from the Tribunal's order.

5. The High Court was tasked with determining whether the petitioner was granted adequate opportunity of hearing before the confiscation and penalty imposition. The Court found that the petitioner was given the required notice, representation, and hearing opportunities as per the legal provisions.

6. The Court emphasized that the petitioner's delay tactics, including requesting cross-examination of multiple witnesses without filing a final reply, contributed to the prolonged proceedings. The Adjudicating Authority and Tribunal had provided ample chances for the petitioner to present his case.

7. Ultimately, the Court concluded that the Adjudicating Authority had granted adequate opportunities to the petitioner, and the Tribunal's decision to reduce the penalty was justified. The reference petition was declined, and the question of law was answered against the petitioner in favor of the revenue authorities.

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