2024 (12) TMI 97 - AT - Customs

Levy of penalty u/s 112(a) and 112(b) of the Customs Act, 1962 - smuggling of one cut piece gold bar of foreign origin weighing 645.500 grams - HELD THAT - The appellants viz. Shri Ayan Das and Shri Syed Ghazanfar Raza Hussain were working as Sales Officer and Assistant Stores Manager respectively in a store called AVA (Merchandiser) located within the Airport premises. For going in and working in the store, both them of them were given an Entry Pass/Identity Card. The appellants misused the Identity Card/ Entry Pass given to them and helped the passenger in the smuggling activity. Both the appellants were intercepted by the officers of the Airport Intelligence Unit and the impugned gold was recovered from the possession of the Appellant Shri Ayan Das. It is also noticed that on receipt of the gold in the toilet of the International Arrival Immigration Area, Shri Ayan Das concealed the same in his shoe, with a view to bring it outside the airport and to deliver it to one Mohammad Arif. As he was not a passenger and he was not eligible to bring the gold into the country, his role in the smuggling activity is established beyond doubt. Syed Ghazanfar Raza Hussain, being his superior in the store, working as Assistant Stores Manager, instructed Shri Ayan Das to conceal the gold in his shoe and smuggle it outside the airport. Thus, it is observed that he played the role of an abettor in the alleged offence. Thus, both the appellants are involved in the smuggling of the gold and hence they are liable for penalty under Section 112(a) and Section 112(b) of the Customs Act, 1962. It is observed that both the appellants do not have any antecedents of smuggling activities in the past. It is also observed that they were neither the owners nor the beneficiaries of the impugned gold - it is further found that no investigation was carried out in this regard with Mohammad Arif, who is the actual beneficiary - the penalty imposed on the appellants is not commensurate with the role played by them. Accordingly, we observe that the penalty imposed on both of them can be reduced. The penalty imposed on both the appellants reduced from Rs. 5,00,000/- each to Rs. 1,00,000/- each, under Section 112(a) and Section 112(b) of the Customs Act, 1962 - The appeals filed by the appellants are disposed off.

Summary

Issues:
- Confirmation of penalty under Sections 112(a) and 112(b) of the Customs Act, 1962 for smuggling of gold bars of foreign origin.
- Misuse of Entry Pass/Identity Card by the appellants for smuggling activities.
- Role of each appellant in the smuggling activity.
- Justification of the penalty imposed on the appellants.
- Consideration of mitigating factors for reducing the penalty.

Analysis:

The judgment by the Appellate Tribunal CESTAT Kolkata involved two appeals arising from the same Order-in-Appeal. The appellants, Shri Ayan Das and Shri Syed Ghazanfar Raza Hussain, were working at an airport store where they misused their Entry Pass/Identity Card to assist in smuggling one cut piece gold bar of foreign origin. The impugned gold was recovered from the possession of Shri Ayan Das, who concealed it in his shoe to deliver it to another individual. Both appellants were intercepted by the Airport Intelligence Unit, leading to the imposition of penalties under Sections 112(a) and 112(b) of the Customs Act, 1962.

The appellants argued that they had no prior smuggling history, were not the owners or beneficiaries of the gold, and faced significant mental trauma and job loss post-incident. They contended that the penalty did not align with their roles and requested a reduction. The Authorized Representative for the Revenue upheld the penalty, citing the misuse of Entry Pass/Identity Card and established roles in the smuggling activity.

Upon review, the Tribunal found that both appellants were involved in the smuggling, with Shri Ayan Das as the carrier and Shri Syed Ghazanfar Raza Hussain as an abettor. Despite their lack of prior smuggling records and non-beneficiary status, the penalty was deemed disproportionate to their roles. Consequently, the Tribunal reduced the penalty for each appellant from Rs. 5,00,000 to Rs. 1,00,000 under Sections 112(a) and 112(b) of the Customs Act, 1962, considering their mitigating circumstances.

In conclusion, the Tribunal acknowledged the appellants' involvement in the smuggling activity but recognized mitigating factors warranting a reduction in the penalties imposed, ultimately deciding to reduce the penalties for both appellants based on the roles played and circumstances of the case.