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TMI Blog2009 (12) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... ociates to carry the impugned gold jewellery and foreign currency for a consideration and the consideration has been stated only to be Rs.2,000/- in the statements recorded from them as well as from the associates of Shri Ramesh separately, the penalty of Rs.50,000/- each imposed on them appears to be harsh on them. At the same time, the amount cannot be reduced to such an extent as to encourage them to commit the same wrongs repeatedly and it should also be deterrent enough to prevent other passengers to act as carriers. Hence, keeping both considerations in view, reduce the penalty in respect of the 11 passenger-appellants from Rs.50,000/- each to Rs.10,000/- (Rupees ten thousand only) each. In the result, the appeals filed by S/Shri G.V. Ramesh, Lakshmi Narayan, Kathiresan, Janakiraman and Parthiban are dismissed. The other 11 appeals filed by the 11 passenger-appellants are partly allowed by reducing the penalties imposed on them from Rs.50,000/- each to Rs.10,000/- (Rupees ten thousand only) each as indicated above X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that one Shri Vijay in 5in used to take photographs of the passengers to whom the packets containing gold jewellery is handed over and to enable easy identification the same were sent by e-mail to the e-mail of ld. Shri G.R. Ramesh. He also stated that the passengers would hand over the gold jewellery only if their photograph is shown to them. further, he stated that out of two bundles of Indian currency of Rs.54,000/- recovered from his possession, one bundle of Indian currency of Rs.27,000/- (2*2500 + 11*2000) i.e. two sub-bundles of Rs. 2,500/ each and eleven sub-bundles of Rs.2,000/- each was to pay for the carriers as per the list and the second bundle of Rs.27,000/- is for meeting other incidental expenditure. The said documents and Indian currency were seized under the provisions of the Customs Act 1962." 3. The officials with the help of the above information intercepted 13 passengers arriving from Singapore at the Chennai Airport from whom the impugned gold jewellery, foreign currency were seized. Statements of these passengers were also recorded. After due investigation, the appellants herein were issued with the impugned show-cause notice and the case has been adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with an assurance that Rs.2500/- would be paid to them if they handed over the same to his, associate in Chennai, who would identify them by showing their photographs taken by the person at Singapore and they were specifically instructed not to declare the gold jewellery to Indian Customs and that in case, they were caught by Customs they would use the Singapore Dollars to pay the duty. All the 13 passengers were not able to produce any purchase documents for the, seized gold jewellery and they stated that they have not, purchased the same and the same did not belong to them. It is also evident from the records that all the 13 passengers have stayed in Singapore for more than six months. It is beyond doubt that the 13 passengers have been intercepted in pursuance of details found in the seized fax papers from the occupants of the Toyota Car, S/Shri. Lakshminarayanan, Parthiban Kathiravan and Janakiraman based on specific intelligence received by the Directorate of Revenue Intelligence officers that one Shri Ramesh, proprietor of Abirami Jewellers along with one Shri Lakshmi Narayanan and other accomplices are indulging in smuggling of gold in the form of jewellery from Singapore t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty on gold jewellery etc. One of the employees of Shri G.V. Ramesh, Shri. Dev Kishan Joshi, present during the search of the premises has stated that the seized 10,000 Singapore Dollars were brought by the passengers each time when they carried gold jewellery from abroad and were handed over to Shri G.V. Ramesh or his employees outside the Anna International Airport. The passenger manifest of the respective flights have confirmed the arrival of all the 96 passengers through Chennai, Anna International Airport on the respective dates and iris confirmed from the Deputy Commissioner of Customs, Chennai Airport that Customs Duty for the import of gold has been collected only for 7 out of 96 passengers. The gold jewellery brought by 89 passengers mentioned have not suffered any customs duty. It appears from the seizure of the baggage receipts for collecting duty on gold imported in the names of different passengers that Shri G.V. Ramesh has employed the modus operandi over a period of time and whenever duty is demanded for the import of gold jewellery it is paid using the 500 Singapore Dollars available with the passengers and the baggage receipts are collected in lieu of the foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployee of Shri G.V. Ramesh, proprietor of Sree Abirami Jewellery, who used to come to his shop for collecting fax message, if the fax instrument does not work in their shop. Shri Akbar has also identified Shri Lakshminarayanan from his photograph. From the above it is evident that Shri Lakshminarayanan is an employee of Shri. G.V. Ramesh and has indulged in smuggling activities along with him. Shri Dev Kishan John and Shri Akbar have not retracted their statements and hence the same were taken as evidence on record. Out of the Indian currency of Rs.54,000/- seized from the possession of Shri Lakshminarayanan, Rs.27,000/- was in two bundles of Rs.2500/- and 11 bundles of Rs.2000/- which confirms that they have been kept ready for paying the passengers while receiving the jewellery packets and Singapore dollars from them and Shri Lakshminarayanan in his statement has also stated that Rs.27,000/- is for paying the carrier charges for the passengers. In the reply to the Show Cause Notice and in further submissions made during the personal hearing by the Advocates of Shri Lakshminarayanan, Partheeban, Kathiravan and janakiranian, it is stated that the first 3 are brokers by profession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sengers on 742-2001 and as stated by Shri Dev Kishan Joshi, the amount was collected from earlier passengers coming from Singapore who were employed to carry gold jewellery. In the submissions made-during the personal hearing, it is submitted that as per FEMA, a person can keep unspent amount up to 2000 US dollars and that Shri G.V. Ramesh was keeping the amount to surrender it to the authorized dealer of foreign exchange and he had 90 days to do so and has produced an attested/true copy of his Pass port to prove his last date of return i.e. 27-10-2007 and that Es. 10,000/- Singapore dollars belong to him and will not attract Section 111 and (d) of the Customs Act, 1962. But Shri G.V. Ramesh has not produced the source of the foreign currency seized i.e., from which authorized foreign exchange dealer the 10,000 Singapore dollars were purchased by him and on which date. Considering the circumstances as discussed and looking to the fact of lack of any supportive documentary evidence for legal procurement of foreign exchange, his version appears to be not acceptable. Shri.G.V. Ramesh has, not appeared before the Directorate of Revenue Intelligence Officer in response to the Summon is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate customs duty, with instructions not to pay the customs duty and enticing them with monetary benefit at the time of handing over the gold jewellery so brought by them at Chennai Airport. Hence, Shri G.V. Ramesh, Vijay, lakshminarayanan, Parthiban, Kathiresan and Janakiraman are liable to penal action under section 112 of the Customs Act, 1962. Further a serious view is to be taken as they tried to abuse the concessions and facilities granted by Govt. of India by hiring the passengers for pecuniary gains. The 13 passengers have brought the gold jewellery and foreign currency given by Shri Vijay at Singapore agreeing to handover (he same and the 500 Singapore dollars without paying customs duty as instructed, outside the Airport to the persons who would identify them and pay them carrying charges of Rs.2000/2500. As the goods brought by them do not belong to them i.e. non-bona fide baggage, not declared to Customs under Section 77 and no documentary evidence has been produced to prove that the goods are legally procured by them for personal purposes and also in view of the repeated assertion and refraction by 11 out of 13 passengers, the same appears to be liable to abso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,00,000/- on Shri Lakshmi Narayan and Rs.1,00,000/- each on S/Shri Parthiban, Kathiresan, Janaki Raman and Vijay. He has also confiscated 10,000 Singapore dollars seized from Shri Abirami Jewellery owned by Shri Ramesh and allowed redemption of the same on payment of a fine of Rs.1,50,000/-. The Toyota Quails car was also confiscated but allowed redemption on payment of a fine of Rs.1,00,000/-. The Indian currency of Rs.54,000/- has however been released. 5. Shri C. Natarajan, learned senior counsel appearing, on behalf of the appellants argues inter alia as follows:- (i) The passengers were intercepted before they could go to the proper officer of customs and declare the gold and foreign currency with each of them and hence the interception and seizure of the gold has been prematurely done. It would have been a different case if the passengers were apprehended with gold and foreign currency at the point of exit. Having not done so, the department has not proved a case of smuggling against the passengers. (ii) The impugned gold was in the form of jewellery , import of which is not prohibited under Foreign Trade Policy and hence the same can not be confiscated under Section 111( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ception. 8. She further states that all the 13 passengers (including 2 who are not appellants before the Tribunal) have voluntarily admitted on the date of seizure that the impugned gold and foreign currency did not belong to them. They also made no plea at the time regarding the same being their bona fide baggage nor they prayed for redemption of the same. They were merely carrying the gold for a monetary remuneration. The original statements dated 7-12-2007 were no doubt retracted by a letter dated 12-12-2007 but subsequently the 11 passengers who are appellants before the Tribunal have retracted their retraction. They have also stated that the retraction given on 12-12-2007 was given under threat from Shri Ramesh and on offer of remuneration. The learned DR states that the passengers have admitted that they do not know English nor the contents of the refraction statements nor the writ petitions which were filed before the Hon'ble High Court were known to them but they had merely signed the same. She states that the Hon'ble High Court had dismissed their writ petitions and had ordered to complete the investigation apart from directing the appellants to cooperate with the investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to India without filing the necessary declaration with a view to evading prohibitions and the payment of customs duty thereon have to be considered as prohibited goods and the release of the same on payment of redemption fine should not be allowed. 12. We have considered the submissions from both sides as well as the records of the case. The adjudicating Commissioner was called upon in this case to adjudicate the case before him on the basis of evidence brought on record as a result of the investigation undertaken by the Department. The proceeding before him was not a criminal trial and hence the standard of proof required was that of preponderance of probability and not proof beyond reasonable doubt. We have reproduced his findings at length for the purpose of examining as to whether there was a preponderance of probability to come to the conclusion regarding Shri Ramesh and his associates using the passengers for smuggling of gold jewellery without payment of duty. The evidence adduced and the findings indicate that there was more than a preponderance of probability to come to a conclusion in this regard which the adudicating Commissioner has arrived at. 13. We also find that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Adjudicating Commissioner. 15. All the evidence gathered by the Department and recorded in the finding of the adjudicating Commissioner go to prove the involvement of Shri Ramesh as well as his other associates namely S/Shri Lakshmi Narayan, Parthi ban, Kathiresan, Janakiraman and Vijay as has been held by the adjudicating Commissioner. The foreign currency seized from Sree Abirami Jewellery and the impugned car, in our view, have also been rightly held liable for confiscation for the reasons stated in the impugned order. 16. As regards the plea of the learned senior counsel for allowing redemption of gold and foreign currency recovered from the passenger-appellants and absolutely confiscated, we are of the view that once the finding of the adjudicating Commissioner is upheld that these did not belong to them, they were not the owners of the same and that they were carrying the same for some one else, there is no warrant in law to allow redemption of the same to the passenger appellants. In this regard we find support in the decision of the Hon'ble Bombay High Court in the case of Union of India v. Mohammed Aijaj Ahmed - 2009 (244) E.L.T. 49 (Bom.) wherein the Hon'ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to reduce the penalties imposed upon the appellants Shri G.V. Ramesh arid his associates as the penalties imposed on them are commensurate to the offences committed. 19. As regards the penalties imposed on the individual passengers, we find that they have been penalized to the extent of Rs.50,000/- each. The same is little less than 10% of the value of the confiscated gold jewellery and foreign currency recovered from each of them. Considering the fact that they were induced by Shri Ramesh and his associates to carry the impugned gold jewellery and foreign currency for a consideration and the consideration has been stated only to be Rs.2,000/- in the statements recorded from them as well as from the associates of Shri Ramesh separately, the penalty of Rs.50,000/- each imposed on them appears to be harsh on them. At the same time, the amount cannot be reduced to such an extent as to encourage them to commit the same wrongs repeatedly and it should also be deterrent enough to prevent other passengers to act as carriers. Hence, keeping both considerations in view, we reduce the penalty in respect of the 11 passenger-appellants from Rs.50,000/- each to Rs.10,000/- (Rupees ten thousa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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