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TMI Blog2001 (2) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... on travelling from Bombay to Hyderabad when the Aircraft was on a domestic run. The Additional Collector had found that the passenger was zeroed upon by the Customs Officers because he was the only passenger who was manifested direct of Sharjah from Bombay-Hyderabad-Sharjah. He was produced before the purser of the flight Shri Sodhi who admitted to have made identification of the subject passenger as the passenger who had spent unusual time in the Toilet. The subject passenger s baggage was examined which revealed that it contained a screw driver handle and part of the newspaper Bombay Samachar Sapthahika , a commonly read Gujarati newspaper, part of the same as that found with the foreign currency concealed in the Toilet panel of the Aircraft which was recovered. 2. We have heard Shri C.T. Krishnamurthy, leaned Counsel for the appellant, and Shri S. Sudarsan, learned DR for the Department. After considering the submissions made and after perusal of the order of the lower authority impugned before us we find that : (a) The Additional Commissioner, whose order which has been confirmed by the learned Commissioner (Appeals) against which the present appeal is filed, had cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h from Bombay via Ahmedabad, but contrary to the same, the subject passenger had spent normal domestic fair up to Hyderabad and thereafter purchased Hyderabad Sharjah ticket costing more than the normal fair he would have paid for the flight from Bombay to Sharjah via Ahmedabad. This leads us to the conclusion that the intention was not to get a free concessional ticket as is being claimed by the passenger but with some other motive which has been established by the recovery of the part of the newspaper pages from the baggage and the other part in which the currency was wrapped. (c) We agree with the finding of the Additional Commissioner that prima facie it is not for the department to prove each link with mathematical precision in the said act of smuggling in this case by concealment of the currency in the newspaper inside the toilet panel in the Aircraft. However, these very facts have to be determined in the final hearing of the appeal. Prima facie from the facts of this case, we do find that the currency under seizure is linked to the passenger and the liability of penalty has been correctly worked out. We also find from the stay application that no serious challenge on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of intelligence, the officers of Customs with the Indian Airlines Technicians rummaged the aircraft and on opening the toilet overhead panel, found the foreign currencies wrapped in Gujarati newspaper. On suspicion, the appellant was questioned. He denied anything to do with the currency notes. There is no admission on his part that he had carried the same or that he had carried with him any screwdriver or that he had opened the overhead panel of the toilet to keep the currency notes. 6. Even the Crew of the Airlines who had been cross-examined had clearly stated that they have not seen the appellant opening the panel or keeping the currency notes in the upper panel except to say that he had spent some time in the toilet and they did not suspect his bona fides. The investigating officers have not recovered the screwdriver portion from the appellant nor they have conducted any enquiry with regard to the size of the screw of the upper panel and whether the handle the appellant was carrying was indeed a handle of the screwdriver of the size which could be used for removing the screws of the panel. There is a lapse on the part of the department on this portion of the investigation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y only this passenger alone and none others had entered the toilet. It cannot be presumed that this man had sat for 20 minutes and such a timing had been noted by the alleged witnesses and such a conclusion could be drawn that the crew has noted all this and noted the timings of passengers occupying the toilet. All these appears to be too flimsy and does not sound natural on a prima facie consideration. There has to be a direct link between the carrying of the currency notes with the accused in the form of the same having been seized from the person of the accused passenger or any statement from any person or admission made by the appellant himself. In the absence of any evidence of any nature, it cannot be said that Revenue has discharged their burden. There is no evidence at all on record except one crew having seen the person using the toilet. All the passengers use the toilet and mere use of toilet would not indicate that this was the passenger who had used and indulged in the act of opening the upper panel and keeping the currency notes. The entire case is built on suspicion and it appears to be a mystry as to how the Revenue could know that the upper panel could contain the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire amount of penalty as imposed for the purpose of hearing the appeal as directed by Member (T) in his order. OR (b) Whether the stay application is required to be allowed by granting waiver of full amount of penalty and granting stay of its recovery till the disposal of the appeal as held by the Member (J) in his order. Sd/- S.S. Sekhon Member (T) Sd/- S.L. Peeran, Member (J) Dated : 31-10-2000 8. [Order per : V.K. Agrawal, Member (T)]. - This reference has been made at the stage of hearing of Stay Application and the issue referred is whether the Applicant is required to pre-deposit the entire amount of penalty imposed on him or it has to be stayed during the pendency of appeal. 9. Arguing on behalf of the Applicants, Shri C.T. Krishnamurthy, ld. Advocate, submitted that the entire case has been made against him on the basis of recovery of pages 4 to 7 of newspaper Mumbai Samachar Sapthahika from him, recovery of handle of screwdriver in his baggage and the enquiry made from the crew of the Aircraft in which he had flown from Mumbai to Hyderabad. He, further, submitted that the Mahazar drawn in the Aircraft does not speak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been recorded in absence of which it cannot be said that the newspaper found with currency was the remaining page of Newspaper found with him. I am thus of the view that issue regarding the liability of the Applicant towards penalty is highly arguable. I find myself in agreement, for the purpose of entertaining the appeal, with the views of the Hon ble Member (Judicial) that there is no clash of Revenue interest in considering the pre-deposit of penalty imposed in the present matter as he had not claimed the ownership of the foreign currency. I am, thus of the view that balance of convenience is in favour of the Applicant as far as requirement of pre-deposit of amount of penalty is concerned. I, therefore, answer the Reference by saying that the stay application is required to be allowed by granting waiver of full amount of penalty and granting stay of its recovery during the pendency of the Appeal. Sd/- (V.K. Agrawal) Member (T) MAJORITY ORDER In view of the majority order, pre-deposit is waived and stay of recovery is granted tilt the disposal of the appeal. Sd/- K.K. Bhatia Member (T) Dated : 27-2-2001 Sd/- S.L. Peeran, Memb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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