2013 (5) TMI 68 - AT - Customs

Penalty U/s 114 of the Customs Act, 1962 - Appellant in the attempt to export of foreign currencies of various denominations, Travellers cheques and Indian currency to Singapore by one Sri Nallaian Pargunam @ Joseph and his wife - Held that - The expression attempt within the meaning of these penal provisions is wide enough to take in its fold any one or series of acts committed, beyond the stage of preparation in moving the contraband goods deliberately to the place of embarkation, such act or acts being reasonably proximate to the completion of the unlawful export. Evidence Act does not insist on absolute proof for the simple reason that perfect proof in this imperfect world is seldom to be found - That is why under Section 3 of the Evidence Act, a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists The case in hand could not make the appellant a stranger to the offence committed and the appellant proved himself to be familiar to facts and circumstances of the case, he subjected himself to penal proceedings of the law. His involvement in the offence committed being so glaring and not contradicted leading cogent evidence, he was not innocent to claim leniency. Making an overall assessment of facts and circumstances and taking into consideration of the magnitude of his involvement and evidence as well as the role played, it is considered proper to reduce the penalty - Appeal is partly allowed to such extent.

Summary

Issues: Attempted export of foreign currencies, travellers cheques, and Indian currency without legitimate evidence; Appellant's role as an abettor under the Customs Act, 1962; Adjudication of penalty of Rs. 5 lakhs on the Appellant under Section 114 of the Act.

Analysis:

1. The appellant was penalized as an abettor under the Customs Act, 1962 for his involvement in the attempt to export foreign currencies, travellers cheques, and Indian currency. The adjudication order imposed a penalty of Rs. 5 lakhs on the Appellant. The appellant challenged this order before the Tribunal, arguing against the evidence presented against him.

2. Statements recorded from individuals involved in the case, including Sri J. Sickander and Shri A. Jabarullah, provided crucial details implicating the Appellant in the attempt to export the impugned goods. The evidence highlighted the conscious knowledge and active participation of the Appellant in the illegal export scheme.

3. The adjudicating authority found the Appellant guilty based on the evidence presented, which included admissions made by the Appellant himself. The Tribunal noted that the Appellant's retraction of statements was insufficient to disprove his involvement in the attempted export.

4. The Tribunal emphasized the stages of criminal conduct leading to the commission of an offense, distinguishing between preparation and attempt. The Appellant's actions were deemed to constitute an attempt to commit the offense of exporting the impugned goods, as he was actively involved in the process.

5. The Tribunal highlighted the purpose of penal provisions in combating smuggling activities and the importance of interpreting such provisions to suppress illegal activities effectively. The wide scope of the term "attempt" under penal provisions encompassed the Appellant's actions in moving contraband goods towards unlawful export.

6. The Tribunal considered the evidence presented by the Customs Authority as sufficient proof of the Appellant's abetment in the offense. The circumstantial evidence and the Appellant's familiarity with the illegal scheme led to the conclusion that he was not innocent and deserved penal consequences.

7. After a comprehensive assessment of the facts and circumstances, the Tribunal decided to reduce the penalty imposed on the Appellant to Rs. 1,00,000. The decision was based on the magnitude of the Appellant's involvement and the evidence presented, ultimately partially allowing the appeal to that extent.