2019 (3) TMI 713 - AT - Customs

Smuggling - Indian Currency - Assorted Foreign Currency - baggage rules - admissibility of evidence - Section 108 of Customs Act, 1962 - Held that - If it was a movie or a drama and theatrics and rhetoric of appellant could be considered as evidence of his innocence, appellant would have succeeded long back in establishing that he has been falsely implicated in the case of seizure of Indian Currency and Foreign Currency totaling to ₹ 21,98,349/-. However the case proceedings are not part of any movie or drama but are based on facts and evidences recovered as part of the proceedings leading to recovery, seizure and confiscation of Indian and Foreign Currency. The appellant was arrested after recovery of the said Indian and Foreign Currency and was produced before the Magistrate at Esplande Court on 16/08/2001. Magistrate after taking the cognizance of the offence committed remanded him to judicial custody and was bailed out only after two weeks. During the proceedings before the Magistrate appellant could have contested the said recovery which he didn t. From the panchnama drawn for verification of the Currency recovered and seized as per panchnama dated 15.08.2001 the fact about availability of both the Indian and Foreign currency is verified in presence of Special Metropolitan Magistrate. Panchnama dated 15.08.2001 and the Sealed Packets bearing P O Seal No 131 were also verified and the packets opened and the Currency also verified. This document is enough to establish the authenticity of the panchnama drawn on 15.08.2001 - To verify the facts disputed by the appellants during the course of hearing to the effect that no Indian Currency was recovered and seized from him, and no such currency is available, Commissioner Customs, Airport Mumbai was asked to cause an verification and file an affidavit testifying the facts about availability and deposit of the said currency. In compliance Commissioner has filed duly notarized affidavit dated 5th December 2018. From the affidavit filed by the Commissioner, it is quite evident that both Indian and Foreign Currency were duly inventorized at the time of seizure and after verification of the same by Special Metropolitan Magistrate; the same was disposed of by way of depositing the same with State Bank of India. In view of the said evidences, there are no merits in the submissions made by the appellant in this respect. Since appellant is himself not claiming the Indian Currency and has in appeal and during the course of hearing before CESTAT the same, the order of Commissioner, absolutely confiscating the Indian Currency is not in challenge in this appeal and is upheld. Foreign currency seized and confiscated - Held that - There are no merits in the claim made by the appellants, as it is contrary to his statement recorded on 15.08.2001 wherein he has deposed that the foreign currency was brought from abroad on his earlier trip from Switzerland which is less than US 5000/- and therefore he has not declared it to Customs - From the face of order it is evident that Commissioner has issued the re-adjudication order on 02.01.2018 and Certificate of Harmit Brothers is dated 12th January 2018. Production of such a certificate after the adjudication of the case in remand proceedings is nothing but an after-thought. Secondly I do not find any merits in the statement made in the certificate - The said certificate do not specify as to what was the business relationship between the Harmit Brothers and Appellant, which had prompted them to give sum of US 5000/- to the Appellants. Further the date and document evidencing the payment of said amount of US 5000/- by Harmit Brothers to appellant is not stated and enclosed with the Certificate. The certificate do not inspire any confidence vis a vis the transaction mentioned therein and hence cannot be accepted or allowed at this stage of proceedings. Penalties - Held that - Since appellant is a habitual offender and has been involved in the case of smuggling of Indian and Foreign currency more than once, there is no hesitation in upholding the penalties imposed under section 114(i) of the Customs Act, 1962. Principles of natural justice - Held that - Appellant cannot plead violation of principles of natural justice In the present case because he had been offered the opportunity of personal hearing and cross examination of panchas by the Commissioner which he deliberately refused and asked for the order on merits. Apart from making an attempt to show that he was not carrying Indian Currency recovered and seized from him contrary to the evidences and records available, appellant has not stated anything except accusing the authorities including Metropolitan Magistrate for framing and falsely implicating him in the case of smuggling of Indian Currency. Since all the evidences are contrary to the submissions and rhetorics of the appellant I am not in agreement with any of submissions made. Appeal dismissed - decided against appellant.

Summary

Issues Involved:
1. Confiscation of Indian and Foreign Currency
2. Confiscation of personal effects used for concealing currency
3. Imposition of personal penalty
4. Allegations of false implication and procedural irregularities
5. Retraction of statements and authenticity of panchnama
6. Compliance with principles of natural justice

Detailed Analysis:

1. Confiscation of Indian and Foreign Currency:
The Commissioner ordered absolute confiscation of Indian Currency amounting to ?20,10,000/- and Foreign Currency equivalent to ?1,88,349/-, totaling ?21,98,349/-, under Sections 13(d), (e), and (h) of the Customs Act, 1962. The appellant was intercepted at the airport carrying these currencies without any supporting documents or declaration to Customs. The appellant initially admitted in his statement under Section 108 of the Customs Act that he was smuggling the currency for a payment towards electronic goods and was aware that it was illegal. However, during the appeal, the appellant denied possession of the Indian Currency and claimed the foreign currency was for business purposes, supported by a certificate from Harmit Brothers. The tribunal upheld the confiscation, finding the appellant's claims unconvincing and the certificate an afterthought.

2. Confiscation of Personal Effects Used for Concealing Currency:
The Commissioner also ordered the confiscation of a pair of socks, a small checkered coat, and a black-colored zipper handbag used for concealing the currency under Sections 118 and 119 of the Customs Act, 1962. The appellant argued that the panchnama was fabricated and that it was impossible to conceal such an amount in the mentioned items. However, the tribunal found the panchnama and subsequent proceedings, including the verification by a Special Metropolitan Magistrate, to be credible and upheld the confiscation.

3. Imposition of Personal Penalty:
A personal penalty of ?3,00,000/- was imposed on the appellant under Section 114(i) of the Customs Act, 1962. The tribunal upheld this penalty, noting the appellant's habitual involvement in smuggling activities, as evidenced by previous cases of currency smuggling and seizure of mobile phones. The tribunal found no merit in the appellant's arguments against the penalty.

4. Allegations of False Implication and Procedural Irregularities:
The appellant claimed he was falsely implicated, the panchnama was fabricated, and his statement was obtained under duress. He also alleged that his request for cross-examination was denied. The tribunal dismissed these claims, citing the appellant's failure to contest the recovery during the initial proceedings and the verification of the seized currency by the Special Metropolitan Magistrate. The tribunal found the procedural conduct to be proper and the appellant's allegations unsubstantiated.

5. Retraction of Statements and Authenticity of Panchnama:
The appellant retracted his statement and disputed the authenticity of the panchnama. However, the tribunal found his retraction inconsistent with his earlier admission and the panchnama to be credible, supported by the verification process. The tribunal noted that the appellant's arguments were self-defeating, as he acknowledged the foreign currency while denying the Indian currency, both recorded in the same panchnama.

6. Compliance with Principles of Natural Justice:
The appellant argued that the principles of natural justice were violated. However, the tribunal noted that the appellant was given opportunities for personal hearing and cross-examination, which he declined. The tribunal found that the appellant's refusal to participate in the proceedings and subsequent accusations were attempts to evade the consequences of law. The tribunal concluded that the principles of natural justice were duly followed.

Conclusion:
The tribunal dismissed the appellant's appeal and upheld the order of absolute confiscation of the Indian and Foreign Currency, the confiscation of personal effects, and the imposition of a personal penalty. The tribunal found no merit in the appellant's claims of false implication, procedural irregularities, and violation of natural justice. The cross-objection filed by the revenue was also disposed of.