2001 (2) TMI 736 - AT - Customs

Summary

Issues Involved:
1. Legitimacy of the penalty imposed under Section 113(1) of the Customs Act, 1962.
2. Evidentiary link between the appellant and the foreign currency found.
3. Requirement for pre-deposit of the penalty for the appeal hearing.
4. Financial hardship claimed by the appellant.

Detailed Analysis:

1. Legitimacy of the Penalty Imposed:
The penalty of Rs. 2 lakhs was imposed on the appellant under Section 113(1) of the Customs Act, 1962, following the recovery of foreign currency valued at Rs. 2,61,461.00. The currency was found concealed in the rear toilet overhead panel of an aircraft. The Additional Commissioner, whose order was confirmed by the Commissioner (Appeals), concluded that the appellant was linked to the concealed currency due to the unusual time spent in the toilet and the presence of a Gujarati newspaper, part of which was found with the currency.

2. Evidentiary Link Between the Appellant and the Foreign Currency:
The Additional Commissioner relied on the recovery of pages 4 to 7 of a Gujarati newspaper from the appellant and the remaining pages found with the concealed currency. The appellant's abnormal flight pattern and the presence of a screwdriver handle in his baggage were also considered incriminating. However, Member (J) S.L. Peeran dissented, pointing out that the evidence was circumstantial, and there was no direct proof linking the appellant to the currency. The crew did not witness the appellant placing the currency, and the screwdriver handle found was not proven to be capable of opening the toilet panel.

3. Requirement for Pre-deposit of the Penalty:
Member (T) S.S. Sekhon directed the appellant to pre-deposit the penalty, stating that the department need not prove each link with mathematical precision. He found the evidence sufficient to establish a prima facie case. In contrast, Member (J) S.L. Peeran argued that the appellant had made a strong prima facie case, highlighting the lack of direct evidence and questioning the thoroughness of the investigation. He advocated for waiving the pre-deposit requirement, emphasizing the appellant's financial hardship and the lack of ownership claim over the currency.

4. Financial Hardship Claimed by the Appellant:
The appellant claimed to be a small-time trader in financial distress, unable to pre-deposit the penalty. Member (J) S.L. Peeran supported this claim, stating that the financial hardship should be considered, especially since the penalty is a penal provision and the appellant did not claim ownership of the currency. Member (T) V.K. Agrawal, agreeing with Member (J), noted that the case was highly arguable and the balance of convenience favored the appellant, leading to the conclusion that the pre-deposit should be waived.

Majority Decision:
The majority decision, influenced by Member (T) V.K. Agrawal's agreement with Member (J) S.L. Peeran, concluded that the stay application should be allowed. The full amount of the penalty was waived, and the recovery was stayed during the pendency of the appeal, acknowledging the arguable nature of the case and the appellant's financial hardship.

Conclusion:
In view of the majority order, the pre-deposit requirement was waived, and the recovery of the penalty was stayed until the appeal's disposal. The decision highlighted the importance of considering the strength of the prima facie case and the appellant's financial condition in matters of pre-deposit for penalties.