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TMI Blog2017 (1) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant Shri Chatru Singh, AC (AR) for Respondent ORDER Per Raju These appeals are filed by a Courier company and sub-agent of the courier company against imposition of penalty in a case involving export of Indian currency by courier. The penalty has been imposed by an order of Commissioner under section 114(i) of the Customs Act, 1962. Aggrieved by the said order, the appellants are before Tribunal. 2. No one appeared for the appellants on last two occasions. In the grounds of appeal, Shri Sushil Kumar Jugal Ginoria, sub-agent of M/s Aramex India Pvt. Ltd. has argued that the currency was meant to be sent within the country, however, due to certain error it was forwarded to the courier company M/s Aramex India. He argued that the said currency was stuffed in the parcel of textile to avoid any theft or pilferage. It has been argued that the statements were obtained forcibly from the employees. It was argued that charges contained in the impugned show-cause notice have been made out on the alleged retracted statements of the appellants. He argued that the statement of two employees are absolutely identical and therefore clearly indicated that the same were dicta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in rendering the goods liable to confiscation under the provisions of Section 113 of the Customs Act, 1962 and, therefore, penalty under Section 114 cannot be imposed on the appellant. It has been argued that they had never aided or abetted M/s Ocean Enterprises in the smuggling activities as alleged in the show-cause notice. No evidence to that effect has been produced. It is argued that all the packages through which Indian currency was allegedly smuggled were examined by the Customs authorities as well. It is argued that the Commissioner has erred in holding that the regulation 13(c) of the Courier Import and Export (Clearance) Regulations, 1998 has been violated by failing to exercise the due diligence. It has been argued that by the way the goods have been packaged, it has been impossible to detect the currency. 3. Learned AR relied on the impugned order. 4. I have considered the case records. Detail investigations have been conducted and statements have been recorded. After the export consignment booked by M/s Aramex, courier company was found to contain Indian currency amounting to ₹ 11,12,400/- in 11 takas packed in gunny bags. Similarly, in another gunny bag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... telephone number or office address of M/s. Speedways Courier company. 3.12 However. I find that in the statement recorded on 07.04.05, Shri Sushil Kumar Ginoria made certain material changes and admitted that he had made deliberately false statement earlier on 06.0* )5. He admitted that the parcels were received by him personally on 05.04.05 as he was very much present in the office. Further, he also admitted that the four parcels' tinder seizure were containing the Indian currency of ₹ 45 Lakhs in concealed form. He also admitted regarding involvement of Mohammed Afzal Hussain and Ismu Pottiyal. He had also admitted that earlier also he had helped to export consignments containing Indian currency ranging from ₹ 5 lakhs to ₹ 45 Lakhs. He also admitted that since January 2005 he had received 40 such consignments from the said Ismu Pottiyal. He further confessed that all the consignments received from Ismu Pottiyal were entered in his office register is received from M/s. Speedways Courier though no such company was in existence He had also submitted the Mobile number as well as residential address of Ismu Pottiyal. 3.13 Further statement of Shri Sushi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d confessed that he had mislead the investigation and also brought out the role of Mohd. Afzal Hussain and Ismu Pottiyal. This fact clearly brings out that his statements were not recorded forcibly by the Customs Officers but he was free to give his voluntary statements and he indeed gave voluntary statements including misleading statements. Secondly, the department has successfully corroborated the facts brought out in his statements and it is proved that he was involved in the illegal export of Indian currency alongwith Mohmd. Afzal Hussain and Ismu Pottiyal. Further, I also observe that the department has promptly filed the rebuttals dated 20.04.05 and 26.04.05 before the Court of Hon'ble C.M.M. I find that the statements of the appellant are corroborated by the statement of his brother and his employees and has been examined in para 3.16 and 3.17 as follows: - 3.16 Shri Santosh Kumar Ginoria, brother and partner of Shri Sushil Kumar Ginoria in his statement dated 07.04.05 had also admitted that Mohmd. Afzal Hussain and Ismu Pottiyal were sending lie consignments to Dubai through their courier company He also admitted that they were also in touch with his brother b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .06 since the date of seizure is clearly an afterthought. Noticee had filed two retractions. Further, he had ample opportunity to submit this novel story even before the Court of Chief Metropolitan Magistrate, Mumbai at the various stages of remand and bail applications. However, he has chosen not to do it simply because even to corroborate this story, he had to give the address of his so called upcountry consignee and the local consignor. Further, it is not clear as to why the owners failed to come forward for personal hearing at least through legal representative if they were going to send the currency within India only. I do not find any merit in the said defence and do not understand as to how the said defence will help his case at this belated stage and I therefore reject the said defence as totally baseless and concocted. The evidence collected by the Department proves the case beyond any doubt and exposes the entire sequence of systematic smuggling of Indian currency over a period of time by the noticees. I also find that the impugned order adequately deals with the argument that Indian currency is not prohibited goods but restricted goods in para 3.24 and 3.25 of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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