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TMI Blog2023 (5) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... re a court, as they apply in relation to a proceeding before a court. Appeal allowed. - Customs Appeal No. 50017 of 2023 - FINAL ORDER NO. 50694/2023 - Dated:- 9-5-2023 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Ms. Priyanka Goel, Advocate for the appellant. Mr. Gopi Raman, Authorised Representative for the respondent ORDER Heard the parties. 2. The issue involved is whether the appellant have been rightly imposed with penalty under Section 114(i) 114AA of the Act. 3. Brief facts are as follows: 3.1 Two persons namely; (i) Shri Bharat Hemrajani s/o Shri Rajesh Kumar Hemrajani, resident of House No. 57, Gali No. 4, Kishanganj, Beawar, Ajmer (Rajasthan) having Indian Passport No. K-2384071 and (ii) Shri Manoj Phulwani s/o Shri Lekhraj Phulwani, resident of 1/24, Hari Niwas, Kishanganj, Beawar, Ajmer (Rajasthan) having Indian Passport No. Z-4100634, were going to Dubai from Jaipur on 06.08.2018 by Air India Express Flight No. IX 195. 3.2 They were intercepted by the Customs Officers and on examination of their person and baggage search, the officers found they both are jointly carrying Foreign Indian Currencies of value totalling INR 38,16,029 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhojwani; that in greed of reimbursement of expenditure of tour of Dubai, he had agreed for carrying the Foreign Indian Currency illegally. 5. The noticee no. 2, Shri Manoj Phulwani in his statement dated 07-08-2018 tendered under Section 108 of the Customs Act, 1962 inter alia stated that he is running a travel agency in name and style of M/s Vinayak Tour Travels in Beawar for last 2 years and earning approximately Rs. 50,000/- per month and having Mobile No. 87690- 75455 of BSNL; that he had visited abroad many times; the last visit was in the month of May, 2017; that he was going to Dubai from Jaipur by Air India Express flight No. IX-195 on 06-08-2018 alongwith his copasanger Shri Bharat Hemrajani, resident of House No.-57, Gali No.-4, Kishanganj, Beawar, Ajmer, having Passport No. K-2384071. On being found suspicious the Customs Officer held him alongwith his copassenger and inquired about having any dutiable or prohibited or restricted goods in his baggage, he had denied having such goods. Thereafter, the officers conducted thorough examination of his baggage. He categorically admitted the recovery of the Foreign Currency valued in INR 2,64,940/- and Indian Currency of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng incriminating was recovered from these premises. 9. The seized Foreign Indian Curreney value in INR 38,16,029/- (Foreign currency valued in INR 37,90,488/- and Indian Currency Rs.25,541/-) was sealed with the Seal 8 Ayukat Seema Shulk Auktalya, Jaipur after keeping the same in a plastic box which was sewed with a white cloth. The said currency was deposited in the Valuable Malkhana of Customs Headquarters, Jaipur and entry of the same had been made at V.M entry No. 20/2018 in the Valuable article register. Further, the one bag black color with mark TVS TYRES , Four Empty Sweets Boxes with inner paperboard with mark on cover Shri Radhey Radhey Mishthan Bhandar , one wallet of Brown colour marked wonder one wallet of Black colour marked CM, which were used to conceal the said currency were also sealed with the Seal 8 Ayukat Seema Shulk Auktalya, Jaipur after sewing the same with a white cloth and these had also been deposited with Customs Headquarters Malkhana on 10-08-2018, entry of the same has been made at S.No. 27/2018 of the Malkhana Register. 10. The Export of Foreign Currency is not allowed by an Indian resident or a foreigner residing in India, going out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29-04-2019 from Shri Ishwardas Bhojwani, wherein it was informed that Shri Rajkumar Bhojwani is presently in Dubai and will be in India on 05-06-2019. Accordingly the Superintendent, Customs Airport, Jaipur issued another summons vide C.No. VIII(48)AP/17/2018/ 1281 dated 10-05-2019 to Shri Rajkumar Bhojwani to appear on 07-06-2019 for recording his statement in the matter and forwarded the same to Shri Ishwardas Bhojwani vide letter C.No. VILI(48)AP/17/2018/1282 dated 10.05.2019. 12 (ii). In compliance of the summons dated 10-05-2019 Shri Rajkumar Bhojwani appeared before the Superintendent, Customs Airport, Jaipur on 07-06-2019 and tendered his statement under Section 108 of the Customs Act, 1962. In his statement he interalia stated that he is presently residing at C-15, Kirtinagar, Paz Nagar Road, Ajmer with his in-laws and his parents are residing at near Laxmi Bhog Atta Factory Ganeshpura, Beawar; that he is in Dubai since 2003 and at present working in his Brothers company M/s. Krishna General Trading LLC in Dubai and earns an amount of 8400 dirhams per month; that he visited India twice prior to this but could not appear for tendering his statement due to illness of his f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled upon to show cause as to why; (a) Foreign Indian Currency of value in INR 38,16,029/- (Foreign currency valued I INR 37,90,488/- and Indian Currency Rs. 25,541/-) recovered from the noticee no. 1 and noticee no. 2 and seized under Section 113(d) and 113(e) of the Customs Act, 1962. (b) The bag black color with mark TVS TYRES , Four Empty Sweets Boxes with inner paperboard and with mark on cover of Shri Radhey Radhey Mishthan Bhandar , one wallet of Brown colour marked wonder one wallet of Black colour marked CM, which were used for concealment of the said Currency should not be confiscated under section 119 of the Customs Act, 1962. (c) Penalty should not be imposed upon noticee no. 1 Shri Bharat Hemrajani under Section 114 and 114A of the Customs Act, 1962. (d) Penalty should not be imposed upon noticee no. 2 Shri Manoj Phulwani under Section 114 and 114AA of the Customs Act, 1962. (e) Penalty should not be imposed upon noticee no. 3 Shri Rajkumar Phulwani under Section 114 and 114AA of the Customs Act, 1962. 15. The appellant appeared and contested the SCN inter alia stated that the other co-noticee have wrongly stated that they have received the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8400 Dirhamss per month. Further, they have also searched the premises of appellant on 7.08.2018 and nothing incriminating was found. This appellant have also produced the copy of his bank account (two savings account), wherein, no such high value transactions were found. It was also urged that on the basis of statement of third person/ co-accused, the appellant have wrongly been imposed for penalty only on assumption and presumption. Further urged that as the said person Mr. Manoj Phulwani have not been examined by revenue in the adjudication proceedings, such statement have got no evidentiary value for non-compliance of the provisions of Section 138B. 17. However, Commissioner (Appeals) was pleased to reject the appeal relying on the Order-in-Original. 18. Being aggrieved the appellant is before this Tribunal. Assailing the impugned order, learned Counsel for the appellant urges that no case of abetment is made out against this appellant. Further revenue have not found any evidence that the seized foreign currency was received by Mr. Manoj Phulwani from the appellant. The whole case is made out on assumptions and presumptions, relying on the statement of Mr. Manoj Phulwani ..... X X X X Extracts X X X X X X X X Extracts X X X X
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