2015 (1) TMI 1126 - HC - Customs

Benefit of section 125 - Confiscation of currency - Currency belonged to third party - Assessee carrying the currency only as a carrier - Imposition of penalty - Held that - Applicant had initially in his statement under Section 108 of the Act, admitted that the currency was given to him by Vinod Kumar Saini, resident of Jhunjhunu, Rajasthan for handing over to one Rakesh, who was to collect the same from Dubai. He had also given the mobile number of Rakesh and Vinod Kumar Saini. The applicant had also named Tulsi Ram, the owner of the vehicle and that he along with Vinod Kumar Saini had dropped him at the Jaipur Airport. Statement of Vinod Kumar Saini was recorded wherein he admitted that he had gone to the airport at Jaipur to see off the applicant. Vinod Kumar Saini accepted that incoming and outgoing calls were exchanged between him and Rakesh. Similar calls have been also received by Tulsi Ram, his relative. Revisionary Authority held that the applicant was merely a carrier of the said currency, which the applicant wanted to take out of India for monetary considerations. The Indian currency was concealed to avoid being detected. It is clear from the aforesaid finding that the applicant was not treated as the owner of the said currency and as far as ownership is concerned, it was clearly implied that the ownership belonged to Vinod Kumar Saini, who had given the said currency to the applicant for being taken to Dubai. It was meant to be delivered to Rakesh. Neither with the writ petition nor with the present application, any details or particulars of any order/s against Vinod Kumar Saini have been filed. It is also not indicated whether any proceedings were initiated against Vinod Kumar Saini and the effect thereof. In view of the aforesaid position and the above discussion, we do not think that the applicant is entitled to benefit of Section 125 of the Act. In our order dated 22nd July, 2013, we had noticed that there was a delay and laches in filing of the writ petition. The impugned order is dated 9th October, 2012 and the writ petition was filed in July, 2013. Before us, it was contended that the applicant was a poor man and had to arrange for resources for filing the writ petition. The aforesaid stand, we had observed, confirms and reinforces the finding that the applicant was merely a carrier. The currency belonged to a third person. The reference to the third person obviously was to Vinod Kumar Saini. It is quite apparent that the paltry fine of ₹ 2 lacs imposed on the applicant was in view of the fact that he was not the owner. No merit in the present application - Decided against assessee.

Summary

Issues Involved:
1. Delay in filing the writ petition.
2. Applicability of Section 125 of the Customs Act, 1962.
3. Ownership and confiscation of the seized currency.
4. Statements and evidence under Section 108 of the Customs Act, 1962.
5. Proceedings and findings of the adjudicatory and appellate authorities.

Detailed Analysis:

1. Delay in Filing the Writ Petition:
The writ petition was dismissed due to a significant delay of nearly nine months from the impugned order dated 09.10.2012 to the filing date in July 2013. The petitioner claimed financial constraints as the reason for the delay. However, the court found this explanation insufficient and indicative that the petitioner was merely a carrier for a third party.

2. Applicability of Section 125 of the Customs Act, 1962:
The petitioner relied on Section 125 of the Customs Act, which allows an option to pay a fine in lieu of confiscation. The court noted the amendment to Section 125, which includes persons from whose possession goods are seized. Despite this, the court emphasized that the petitioner was not the owner of the currency, thus not entitled to the benefits under Section 125.

3. Ownership and Confiscation of the Seized Currency:
The currency, consisting of Rs. 19,80,000 and 21,900 UAE Dirhams, was seized from the petitioner at the Delhi airport. The petitioner initially admitted that the money was given to him by Vinod Kumar Saini to be delivered to Rakesh in Dubai. The adjudicatory authority ordered the confiscation of the currency but allowed redemption on payment of a fine. However, the Revisionary Authority overturned this, holding that the petitioner was merely a carrier and not the owner, thus ordering absolute confiscation.

4. Statements and Evidence under Section 108 of the Customs Act, 1962:
The petitioner's statement under Section 108, admitting his role as a carrier, was pivotal. He confessed that the currency was given to him by Vinod Kumar Saini for delivery in Dubai, and he was to receive 600 UAE Dirhams for this task. The court held that statements made before Customs Officers are valid evidence, even if retracted later, as per the Supreme Court's precedent.

5. Proceedings and Findings of the Adjudicatory and Appellate Authorities:
The Additional Commissioner of Customs initially allowed the petitioner to redeem the currency on payment of a fine and imposed a penalty. The Commissioner (Appeals) upheld this decision. However, the Revisionary Authority, upon reviewing, determined that the petitioner was not the owner but a carrier, thus ordering absolute confiscation. The court upheld this finding, emphasizing the petitioner's admission and the lack of any claim to ownership during earlier proceedings.

Conclusion:
The court dismissed the review petition, reinforcing that the petitioner was a mere carrier of the currency, which belonged to a third party. The delay in filing the writ petition and the lack of ownership disqualified the petitioner from the benefits under Section 125 of the Customs Act. The statements under Section 108 were held as valid evidence, and the findings of the Revisionary Authority were upheld.