2017 (2) TMI 133 - AT - Customs

Confiscation of currency u/s 121 of the CA, 1962 - imposition of penalty - export under DEEC - misdeclaration of description goods - more currencies found in the premises - Held that - It is difficult to believe that anybody in the dock would put currency in such large amounts in the pallet belonging to the appellant without his knowledge. Anybody putting such money would be interested in getting the same back when the container reaches its destination. It cannot be done without the connivance and the help of the exporter and the consignee. Moreover, the currency has been found on more than one occasions in the export consignments. Imposition of separate penalties on the company and the director - Held that - There is no bar on the imposition of separate penalty on the company and the director - the director has played significant role and therefore penalty has been rightly imposed. Appeal rejected - decided against appellant.

Issues Involved:
1. Confiscation of Indian currency under Section 121 of the Customs Act.
2. Imposition of penalty under Section 114 of the Customs Act.
3. Applicability of Settlement Commission’s order and immunity.
4. Legitimacy of retracted statements and their impact on the case.
5. Separate penalties on the company and its director.

Issue-Wise Detailed Analysis:

1. Confiscation of Indian Currency under Section 121 of the Customs Act:

The appellants contested the confiscation of ?30 lakhs under Section 121 of the Customs Act, arguing that the currency was the sale proceeds of goods imported duty-free but later sold in the local market. The Tribunal noted that the goods were imported under advance license and sold in violation of policy, making them liable to confiscation under Section 111(o). Section 121 allows confiscation of sale proceeds of smuggled goods sold by a person knowing they are smuggled. The Tribunal upheld the confiscation, stating that the goods were liable to confiscation, thus invoking Section 121 was appropriate.

2. Imposition of Penalty under Section 114 of the Customs Act:

The appellants argued against the penalty imposed under Section 114, claiming that the retracted statements of Shri Pradeep Bhatnagar should not be relied upon. The Tribunal found the retraction, made 37 days after release from jail, to be unconvincing and upheld the penalty. The Tribunal cited the case of Laxmilal Chunilal Mehta, emphasizing that corroborated statements, even if retracted belatedly, can substantiate penalties.

3. Applicability of Settlement Commission’s Order and Immunity:

The Settlement Commission had settled charges (a), (b), (c), (f), and (h) but refrained from giving findings on issues (d), (e), and (g) related to the currency. The Tribunal clarified that the Settlement Commission’s order did not extend immunity to these charges, allowing the Revenue to adjudicate them. Therefore, the benefit of Section 127J, which makes Settlement Commission orders conclusive, did not apply to the currency-related charges.

4. Legitimacy of Retracted Statements and Their Impact on the Case:

Shri Pradeep Bhatnagar retracted his statements, claiming coercion. The Tribunal found numerous loopholes in the retraction, noting that he had multiple opportunities to report coercion to authorities but failed to do so. The Tribunal upheld the reliance on the original statements, supported by corroborative evidence, and dismissed the retraction as unconvincing.

5. Separate Penalties on the Company and Its Director:

The appellants argued against separate penalties on the company and its director, citing previous Tribunal decisions. The Tribunal distinguished the current case, stating that there is no bar on imposing separate penalties. Given the significant role of the director in the case, the penalties on both the company and the director were upheld.

Conclusion:

The Tribunal upheld the confiscation of ?30 lakhs under Section 121 and the penalties imposed under Section 114. The Settlement Commission’s order did not cover the currency-related charges, allowing the Revenue to adjudicate them. The retraction of statements was found unconvincing, and separate penalties on the company and its director were deemed appropriate. The appeals were rejected.

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