1986 (2) TMI 217 - AT - Customs

Summary

Issues Involved:
1. Whether the appellant attempted to export Indian and foreign currency.
2. The validity of the penalty imposed on the appellant.
3. The relevance of the Magistrate's acquittal in departmental proceedings.
4. The procedural correctness of the adjudication process without a show cause notice.

Issue-wise Detailed Analysis:

1. Whether the appellant attempted to export Indian and foreign currency:

The appellant was found with Rs. 18,300/- and 400 U.S. Dollars near the vessel M.T. Gambhira. The Customs Department argued that the appellant intended to hand over the currency to a crew member, Shri Sherzada, who was on a foreign ship set to sail the next day. The appellant's initial statement indicated he was to receive a commission for delivering the currency. The Customs Department contended that this constituted an attempted export under Section 113(d) of the Customs Act. The appellant argued that he had not boarded the ship nor parted with the currency, thus no attempt to export occurred. The Tribunal concluded that the appellant's actions fell within the ambit of "brought within the limits of any customs area for the purpose of being exported," thereby constituting an attempted export under Section 113(d).

2. The validity of the penalty imposed on the appellant:

The Customs Department imposed a penalty of Rs. 2,000/- on the appellant. The appellant's Advocate argued that since there was no attempted export, the penalty was unjustified. However, the Tribunal upheld the penalty, reasoning that the appellant's actions demonstrated an attempt to export the currency, thus justifying the penalty under Section 114 of the Customs Act.

3. The relevance of the Magistrate's acquittal in departmental proceedings:

The appellant was acquitted by the Magistrate on charges of attempted export. The appellant's Advocate argued that this acquittal should influence the departmental proceedings. However, the Tribunal maintained that criminal and departmental proceedings are distinct, with different standards of proof. The Tribunal cited the Bombay High Court's judgment in CR. W.P. 1004/85 to support this view, thus rejecting the argument that the Magistrate's acquittal should impact the departmental proceedings.

4. The procedural correctness of the adjudication process without a show cause notice:

The appellant waived the show cause notice during the adjudication process. The Tribunal noted that under Section 124 of the Customs Act, a notice is required unless waived by the concerned party. The Tribunal found that the appellant's waiver was valid and that the procedural requirements were met. However, one member, Shri K. Gopal Hegde, dissented, arguing that the waiver did not absolve the requirement to inform the appellant of the allegations and provide an opportunity to be heard, thus indicating a procedural infirmity.

Separate Judgments:

Majority Opinion:

The majority of the Tribunal, including the third member, upheld the confiscation of the currency and the penalty imposed on the appellant. They concluded that the appellant's actions constituted an attempted export under Section 113(d) and that the penalty was justified.

Dissenting Opinion:

Shri K. Gopal Hegde disagreed with the majority, arguing that the appellant's actions did not amount to an attempted export but at most preparation, which is not an offense under the Customs Act. He also highlighted procedural issues in the adjudication process, suggesting that the penalty and confiscation should be set aside.

Final Order:

Based on the majority opinion, the Tribunal confirmed the orders of the Assistant Collector and the Appellate Collector, rejecting the appeal and upholding the penalty and confiscation of the currency.