2016 (12) TMI 702 - AT - Customs

Validity of addendum to the SCN - Seizure of Heroin concealed in books attempted to be couriered to Maldives - imposition of penalty - Held that - There is no dispute that the parcel in question was received and handled by the appellant. With regard to the contention that the addendum issued to him does not have validity, I find myself in agreement with the views of the lower appellate authority that when the show cause notice was issued within the prescribed time from the date of seizure, any addendum or corrigendum issued was with reference to the said notice only. In any case, the addendum in question, dated 03/05/2013 specifically indicates that it is issued as part and parcel of the show cause notice dt. 22.11.2011 and further, it only seeks to give notice, as to why penalty should not be imposed, inter alia, on the appellant under Section 114 (i) of the Customs Act, 1962. I am of the considered view that since his role in the entire modus has been established, he cannot claim ignorance as an excuse for non-imposition of penalty. Further, from the investigation it has emerged that in the accompanying invoice to the Airway Bill, his name was shown partially as Narayana, Habsiguda, Hyderabad and his identity card issued by Election Commission only was enclosed as proof of consignor/exporter. These facts only serve to demolish the claim of innocence by the appellant. The appellant cannot in any way claim that he was an unwitting accomplice who happened to be in the wrong place at the wrong time. On the other hand, the conduct and role played by the appellant give the lie to any such averment. Thus, concerning the complicity of the appellant, the principle of res ipsa loquitur (the thing speaks for itself) will verily apply. Those who come for judicial succour should come with clean hands. Therefore, no merit is found in the appeal and hence the same is dismissed. MA filed by appellant is also disposed of accordingly.

Summary

Issues:
Seizure of Heroin concealed in books attempted to be couriered to Maldives, imposition of penalty on the appellant, validity of addendum to show cause notice, appellant's protestation of innocence.

Analysis:
The judgment in question pertains to the seizure of Heroin concealed in books that were being couriered to Maldives. The appellant, working as a sub-agent for a purported authorized service provider to a courier service, was involved in collecting and sending the consignment in question. A penalty of ?2 lakhs was imposed on the appellant, which was upheld in the impugned order. The appellant raised concerns about the validity of the addendum to the show cause notice, claiming that the original notice was not issued to him. Additionally, the appellant argued that due to being unaware of the offense, the penalty should be expunged.

Upon examination, it was noted that the appellant had admitted his role in the statement, which was not retracted. The appellate authority found the impugned order sustainable based on this admission. The tribunal reviewed the facts of the case and determined that the parcel was indeed handled by the appellant. Regarding the validity of the addendum, it was established that it was issued in reference to the original show cause notice and sought to provide notice for imposing a penalty under the Customs Act, 1962.

In response to the appellant's protestation of innocence, the tribunal found that the appellant's involvement in the modus operandi was established, rendering his ignorance as an excuse for non-imposition of penalty invalid. Evidence showed that the appellant's name and identity card were linked to the consignment, undermining his claim of innocence. The tribunal applied the principle of res ipsa loquitur, indicating that the facts spoke for themselves, and dismissed the appeal, emphasizing that those seeking judicial relief must approach with clean hands. The tribunal also disposed of the appellant's Miscellaneous Application accordingly.