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TMI Blog2017 (2) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... notice was issued. 2.1 The appellant approached Settlement Commission and the Settlement Commission vide order dated 20.6.2001 gave its order in matters other than the case relating to confiscation of currency. 2.2 The Settlement Commission refrained from giving any finding in respect of Indian currency and observed as follows:- "It is noticed by the Revenue that the goods recalled in these shipping bills were misdeclared and different in description, value and quantity. There was also a seizure of Indian currency of Rs. 66.99 lakhs in these three consignments. There was also a seizure of Indian currency of Rs. 1,22,30,000/- from the residence-cum-office premises. The Commission observes that no duty liability has been occurred yet in the transaction covered by the licence No. 0310035809 dated 27.4.2000. The applicant has sought release of Indian currency seized. In this connection, the Commission finds that an application is made by an importer or any other person at any stage of the case relating to him. The case is defined to mean any proceeding under the Customs Act, or any other Act for the levy, assessment and collection of customs duty, or any proceeding by way of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements. He argued that the impugned order wrongly relies on the said statements for imposing penalty under Section 114 of the Customs Act, 1962. The learned counsel relied on the decision of the Hon'ble Apex Court in the case of Vinod Solanki vs. UOI 2009 (233) ELT 157 (SC), to assert that once the statements are retracted, the demand/penal action cannot be confirmed against an assessee in absence of corroboration of the facts mentioned in the said statements. He argued that in the present case, apart from statement there is no other evidence to show that the currency found in the containers exported by the appellants belonging to the co-appellant. He further argued that separate penalties cannot be imposed on the company and the director and for this he placed reliance on the decision of the Tribunal in the case of Jagannath Plastipacks (P) Ltd. vs. CCE, Bhubaneswar-I 2012 (278) ELT 120. 3.1 Learned counsel argued that the goods imported vide bill of entry No.7083 dated 29.3.2000, against the sale of which, the currency of Rs. 30 lakhs has been confiscated under Section 121, cannot be called as smuggled goods. Learned counsel argued that it is not in dispute that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. vs. UOI 1996 (88) ELT 626 (SC), to assert that the goods which are exempted from customs duty subject to a condition and if the condition is not observed, the goods become liable to confiscation. He further relied on the decision of the Tribunal in the case of Laxmilal Chunilal Mehta vs. CC, Mumbai 2004 (175) ELT 135, wherein it has been held that if statements of various persons involved corroborate each other and there is a belated retraction of those statements, then the confiscation and imposition of penalty can be upheld. 5. We have gone through the rival submissions. We find that the show cause notice was issued on the following charges:- "(a) 47,975 kgs. of Masterbatches totally valued at Rs. 39.90 lakhs, seized under panchanama dated 12.6.2000 and 29.6.2000, as covered in para 7 of the show cause notice should not be confiscated under Section 113 of the Customs Act, 1962; (b) 80,000 kgs. of titanium dioxide totally valued at Rs. 71,84,250/- and 26,053 kgs. of LLDPE valued at Rs. 9,94,251/-, which were imported and cleared without payment of duty under cover of DEEC licence No.031017072 and Notification No.30/97-Cus., as detailed in Annexure A to this sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this regard. In view of this, the Commission imposes an interest of 10 per cent on the admitted duty liability from the date of import till final payment thereof. This amount shall be paid within 30 days from receipt of copy of this order. Prosecution The applicant is given immunity from prosecution under Customs Act, 1962 and the Indian Penal Code (45 of 1860). Indian currency As regards the seized Indian currency, the Commission is of the opinion that the same is not a case as defined for the purpose of decision by Settlement Commission and as such, the Revenue shall take appropriate action as deemed fit in continuation to the show cause notice issued to the applicants. Release of Bond with Bank Guarantee The Bond with Bank Guarantee executed by the applicant shall get discharged after the applicant has complied with this order in relation to payment of duty and interest. This order of settlement shall be void if the Settlement Commission subsequently finds that it has been obtained by fraud or misrepresentation of facts." 5.2 Section 127J of the Customs Act reads as follows:- "Section 127J. Order of settlement to be conclusive. Every order of settlement passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding Section 121 harmoniously with the definition of smuggling as given in Section 2(39) of the Customs Act, it is clear that it is not necessary to confiscate the goods to enable invocation of Section 121. In fact, in most cases since the goods are already sold, no confiscation can be done. In the instant case, it is an admitted position that the goods imported by the appellant vide bill of entry No.7083 dated 29.3.2000 by availing the benefit of advance licence No.031017072 were sold in the market in violation of the policy and in terms of the licence. Such goods obviously become liable to confiscation under Section 111(o) of the Customs Act and in these circumstances, Section 121 can be invoked. 6. Learned counsel for the appellant has argued that the Settlement Commission has granted immunity from fine and penalty. It is obvious that the Settlement Commission has limited its order to charges (a), (b), (c), (f) and (h) of the show cause notice and therefore any immunity from fine and penalty can only be in respect of those charges. Such immunity does not extend to the charges made in clauses (d), (e) and (g) of the show cause notice. In these circumstances, we uphold the confis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to Nhava Sheva port. He argued that it takes seven to eight days to complete the formalities of containers and loading, and during such period the bags are exposed to the public at large and therefore anybody could have played mischief. 8. We find that the retraction has numerous loopholes. First of all, when the containers were recalled, he claims to have been approached by an unknown person who threatened him. If that was true, he should have reported the same to DRI/police, which he failed to do. DRI has recorded his statement more than once. He could have retracted the same when he was produced before the Additional Chief Metropolitan Magistrate. If he was coerced to give statement, he should have clearly stated before the Additional CMM who is a judicial authority. He was again produced before the Magistrate on 11.7.2000 when he was released on bail, where he had another opportunity of placing on record the threat and coercion. It has been alleged that he was threatened by an inmate in the jail where he had the opportunity of informing the Jailer or DRI officers. It can be seen from the above that he had ample of opportunities to retract his statements but he did not do so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms authorities does not prove anything at all. One of the gang members Shri Suresh Pukhraj Jain passed away before the adjudication proceedings were concluded. The department rightly relied on the statements given by the persons concerned to come to the conclusion that the said currency (Rs. 8 lakhs) were sale proceeds of foreign marked gold and foreign currency. The appellant has not brought any fresh evidence before us. His arguments were properly dealt with by the adjudicating authority before concluding that the said currency represented sale proceeds of smuggled gold and the foreign currency liable to confiscation under Section 121 of the Customs Act. He rightly imposed penalty under Section 112(b) of the Customs Act, 1962." 9. Learned counsel for the appellants has also asserted that penalty cannot be imposed on both the company and the director. For this assertion, he relied on the decision of the Tribunal in the case of Jagannath Plastipacks (P) Ltd. (supra). It is seen that in the said case the Tribunal has observed as follows:- "7. I find that the Original Authority has imposed a penalty of Rs. 50,000.00 on the Appellant Assessee, which under the circumstances, requir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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