2023 (12) TMI 385 - AT - Customs

Levy of penalty u/s 114 of the Customs Act, 1962 - allegation of being instrumental in arranging alleged illicit export of foreign currencies through carriers through Calicut Airport in connivance with Mr. P. V. Syed stationed at Sharjah - charges based on the statements of some of the co-noticees - no other additional evidence - HELD THAT - The Trial Court based on the same facts and circumstances has found Mr. Mujeeb Rehaman as guilty and found nothing incriminating in the statement of Mr. Mujeeb Rehaman against Mr. C. M. Abdul Razak. The trial court also observed that there is no direct evidence against others including Mr. C.M. Abdul Razak and it held that the complainant (Revenue) has not succeeded to prove their guilt beyond reasonable doubt. The Trial Court held only the passenger Mr. Mujeeb Rehman as guilty and Mr. C. M. Abdul Razak one of the accused as not guilty and they were acquitted under Section 248(1) of CrPC. It is to be seen whether the evidences on record would require imposition of penalty under Section 114 of the Customs Act, 1962. The evidences as produced in the impugned order are in the form of statements of Mr. Somasundaram, wherein it was stated that he had got a call from Mr. C. M. Abdul Razak late in the night informing him that his man was caught by the Customs at the Airport while trying to smuggle out foreign currencies and he also informed him to contact Mr. Aslam at Dubai - The same set of facts were before the Trial Court, based on which it was held that there is nothing incriminating in the statement of Mr. Mujeeb Rehman incriminating Mr. C.M. Abdul Razak and there was no direct evidence against other accused including the appellant. In the case of S. DURAIAPPA VERSUS COMMISSIONER OF CUSTOMS, CHENNAI 2005 (9) TMI 204 - CESTAT, CHENNAI wherein the question here arose whether on the same set of facts and evidences when the prosecution initiated by the customs authorities under Section 135 of the Customs Act, 1962 had resulted in an acquittal giving them the benefit of doubt at the hands of the competent criminal court, the penalty under Section 112b of the Customs Act, 1962 would sustain. The Hon ble Madras High Court held that in the absence of any additional or further material with the Revenue, we do not find any error committed by the Learned Tribunal to set aside the penalty under Section 112(b) of the Act on the basis of the order of acquittal by the concerned trial Court below. Similarly in the present case, there are no additional evidences other the statements of the co-accused produced by the Revenue other than those that have been placed before the trial court based on which the trial court has acquitted the appellant. In view of the above decision, there are no merit in the impugned order and accordingly, the order to the extent of penalty imposed on the appellant under Section 114 of the Customs Act, 1962, is set aside - The appeal is allowed.

Summary

Issues Involved:
1. Imposition of penalty on Mr. C. M. Abdul Razak under Section 114 of the Customs Act, 1962.
2. Confiscation of foreign currency and other materials involved in the alleged offense.

Summary:

Issue 1: Imposition of Penalty on Mr. C. M. Abdul Razak under Section 114 of the Customs Act, 1962

The appellant, Mr. C. M. Abdul Razak, was penalized by the Commissioner for his alleged involvement in concealing foreign currency intercepted from a passenger, Mujeeb Rehman. Despite the appellant's acquittal by the Trial Court, which found no material connecting him to the seizure, the Commissioner imposed a penalty of Rs. 10,00,000/-. The appellant argued that the acquittal should preclude the imposition of a penalty, citing several judgments to support his claim. The Tribunal noted that the Trial Court had found no direct evidence against Mr. Abdul Razak and had acquitted him under Section 248(1) of CrPC. The Tribunal agreed with the Commissioner that acquittal in criminal proceedings does not automatically nullify penalties in adjudication proceedings but emphasized that the evidence must be scrutinized. The Tribunal found no additional evidence beyond the co-accused's statements that were already considered by the Trial Court. Consequently, the Tribunal set aside the penalty imposed on Mr. Abdul Razak under Section 114 of the Customs Act, 1962.

Issue 2: Confiscation of Foreign Currency and Other Materials

The Department appealed against the impugned order, arguing that the Commissioner failed to address the confiscation of the foreign currency and materials involved. The Tribunal had previously set aside the Order-in-Original due to jurisdictional issues, rendering it null and void. The show-cause notice had proposed confiscation under Sections 113 and 119 of the Customs Act, 1962. The Tribunal agreed with the Revenue that the Commissioner should have addressed all issues from the original show-cause notice. Therefore, the Tribunal remanded the matter to the Commissioner to decide on the confiscation of the foreign currency and the vehicle involved as per the show-cause notice.

Order:
(a) Customs Appeal No. 862 of 2011: The penalty imposed on Mr. C. M. Abdul Razak under Section 114 of the Customs Act, 1962, is set aside.
(b) Customs Appeal No. 1746 of 2011: The matter is remanded to the Commissioner to consider the confiscation of foreign currency and the vehicle as proposed in the show-cause notice.

(Order pronounced in open court on 06/12/2023.)