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TMI Blog2021 (4) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... or fine in lieu of confiscation or confiscation of goods of greater value, unless while passing order under section 128A, the appellate authority has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value. However, if the Appellate authority has not enhanced as provided under sub-section 5(a), issuance of notice to the person affected by the proposed order, is insisted within one year from the date of the order sought to be annulled or modified. The order sought to be modified was of the Appellate Authority being Commissioner of Customs (Appeals) dated 20.01.2016 as the application for revision was preferred by the respondent No.2 under section 129DD of the Act, before the Principal Commissioner Ex Officio Additional Secretary to Government of India on 30.11.2018. The petitioner was served with the notices thrice on 04.09.2018, 01.10.2018 and on 30.10.2018/ 06.11.2018. Grievance sought is made by the petitioner of nonservice of show cause notice, although he had admitted of receipt of one notice of hearing on dated 23.10.2018 which is within the prescribed period under sub-section 5(b) of section 129DD of the Customs Act. There may not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnexed as ANNEXURE-C hereinabove; d. Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ restoring Revision Application before the Respondent No.01 herein u/s. 129DD of the Customs Act, 19562 against Order-in-Appeal No. AHD/CUSTM/000-APP-320-15-16 dtd.20/01/2016 passed by the Commissioner of Customs, Ahmedabad; e. Your Lordships may be pleased to grant such other and further relief/(s) that may be deemed fit and proper in the interest of justice in favour of the Petitioner. 2. Brief facts leading the present petition are as follows: 2.1. The petitioner was working as Airport Supervisor in Air Arabia during July, 2013. Officer of Directorate of Revenue Intelligence (DRI), received a specific information that one passenger Mr. Mayur Keshubhai Kuchhadiya was arriving by Air Arabia Flight No.G-9-0481 from Sharjah at Sardar Vallabhbhai Patel International Airport (SVPI Airport), Ahmedabad on 24.07.2013 and he attempted to illegally smuggle gold, jewellery and some foreign currency notes. The said passenger is alleged to have handed over the goods to the airline staff of Air Arabia at the time of disembarking from the aircraft and a tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 129 of the Customs Act, the challenge was made to this reduction by the Principal Commissioner of Customs, which chose to adjudicate in detail entire dispute and imposed penalty of ₹ 10 lakhs under section 112(a) of the Customs Act upon the petitioner, particularly noticing the CDRs and also highlighting position of the petitioner as the Airport Supervisor of Air Arabia and also for his having access to the Airport including to the most sensitive areas like tarmac and the aircraft . It also held that the access permitted to him was for the purpose of providing service to the passengers embarking and disembarking from the Airport. He, however, misused the access given to him by even facilitating the smuggling of gold jewellery. He was since aware of the fact that the persons authorized to use all areas of Airport are not are checked by the Airport security while leaving the Airport, he used the knowledge of Airport procedure and facilitated smuggling of gold jewellery through the departure hall of the Airport and, thereby, misused his authority as Airport Supervisor. He also ensured that the Air Arabia staff members, Mr. Dhaval and Mr. Arpit both remain stationed at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent authority. 5.1. It is also further contended that the petitioner was working as Airport Supervisor in Air Arabia from July, 2013 and the case was booked on the basis of information that Mr. Mayur Keshubhai Kuchhadiya was arriving in Air Arabia flight and was carrying gold jewellery and foreign currency and on laying trap, the confiscated articles were found from the two airline staff at the SVPI Airport. It is the say of the respondents that no penalty was imposed under section 112(a) by the Additional Commissioner at the time of passing the order in original. However, penalty under section 112(b) was imposed amounting to ₹ 10 lakhs. 5.2. The petitioner approached the Commissioner(Appeals), who reduced the penalty under section 112(b) of the Customs Act from ₹ 10 lakhs to ₹ 01 lakh. 5.3. Aggrieved respondent filed revision application before the Principal Commissioner ex-officio Additional Secretary to the Government of India against the order in appeal, who vide order dated 19.11.2018 confirmed the order dated 20.05.2015 issued by the Additional Commissioner (Customs), Ahmedabad upholding the penalty imposed upon the petitioner to the tun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rear exit for disembarking. He came across two persons bearing identity card of Airport staff to whom he handed over the three packets. The mobile number belonged to Aircraft Supervisor of Air Arabia, Ahmedabad Shri Jay Sudhirbhai Vaidya, the present petitioner. 7.1. The petitioner though claimed ignorance of any bag having been received from the passenger, in fact, the record reveals that he had asked Mr. Dhaval and Mr. Arpit, the ground handling staff members to be at the rear exit of the aircraft and receive the packets from the last passenger, who was disembarking from the aircraft. Mr. Dhaval admitted that he along with Mr. Arpit had received the three packets from the passenger, who was the last to disembark from the aircraft. In the event of any issues, they both were asked by the petitioner to take all the three bags out of the Airport and, thus, Mr. Arpit had left the Airport and kept the bags at his residence. 7.2. The three packets were retrieved by the DRI from the residence of Mr. Arpit. These bags when examined, the first one contained USD 10,000/-, the second bag contained assorted jewellery i.e. bracelets, bangles, ear rings, pendants of yellow metal, which ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, all the ground handling staff of Air Arabia at SVPI Airport were working under his supervision and monitoring when he was on duty. In case of his absence, the ground handling work was carried out by other security supervisor and his boss Manvendra Singh Vaghela. He had instructed the passenger to disembark from the rear door, as he had received phone call from Jagdishbhai and received three packets. He also had admitted that he and Firoz Sheikh Alam had visited Dubai on a holiday and met Jagdishbhai. He knew Jagdishbhai through one of the acquaintances. This petitioner further provided the details as to how proposal was made to smuggle gold from Sharjah in the flight, where the role of his would be restricted to collecting the gold parcels from the person, who carried the same in the flight and to take it out from the Airport for which he was promised some monetary benefits. Matter was then discussed between him and Firoz Sheikh Alam and accepted the proposal of Jagdishbhai in facilitating and taking out the gold jewellery from the Airport. Mr. Dhaval and Mr. Arpit also were included being the ground staff and one Assistant Supervisor Sameer Mansoori of M/s Cambata Aviation Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the stipulated time period of one year from the date of the said order and, therefore, it is emphasized that in absence of any such show cause notice, penalty cannot be enhanced from ₹ 01 lakh to ₹ 10 lakhs. 12. Apt would be refer to section 129DD of the Customs Act at this juncture. 1[129DD. Revision by Central Government.- (1) The Central Government may, on the application of any person aggrieved by any order passed under section 128A, where the order is of the nature referred to in the first proviso to sub-section (1) of section 129A, annul or modify such order: 2[Provided that the Central Government may in its discretion, refuse to admit an application in respect of an order where the amount of duty or fine or penalty, determined by such order does not exceed five thousand rupees.] Explanation .-For the purposes of this sub-section, order passed under section 128A included an order passed under that section before the commencement of section 40 of the Finance Act, 1984*, against which an appeal has not been preferred before such commencement and could have been, if the said section had not come into force, preferred after such commence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified in section 128.] 13. To recapitulate the legal proceedings, on completing inquiry, a show cause notice had been issued by the DRI being DRI/ AZU ND14/19 on 28.01.2014 proposing confiscation of gold and foreign currency of USD 10,000/- and motor vehicle and also for the imposition of penalty. This was adjudicated by the adjudicating authority in order in original by an elaborate discussion of entire materials. As reflected earlier, when the appeal was preferred against the order in original, the Commissioner of Customs (Appeals) under section 128A had reduced the penalty from ₹ 10 lakhs to ₹ 1 lakhs, against which the revision application under section 129DD of the Customs Act was preferred where the DRI approached for revision of the said order in appeal. 13.1. Sub-section (5) of section 129DD precludes passing of order of enhancing any penalty or fine in lieu of confiscation or confiscation of goods of greater value, unless while passing order under section 128A, the appellate authority has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value. However, if the Appellate authority has not enhanced as provided under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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