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TMI Blog2024 (3) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. The Hon ble High Court of Kerala in the case E. Abdul Rahiman Versus Union of India [ 2007 (12) TMI 232 - HIGH COURT OF KERALA AT ERNAKULAM] observed The penalty so levied being personal cannot be recovered from the importer or any other person. Therefore, the petitioner is not personally liable for the penalty levied on Shri Yahoo and the amount also cannot be recovered from the petitioner. It is undoubtedly clear that personal penalty levied on the co-noticees cannot be recovered from the amount to be refunded to the appellant - the impugned order set aside - appeal allowed. - HON'BLE MRS. R. BHAGYA DEVI , MEMBER ( TECHNICAL ) Shri Shashwath S. P. Advocate for the Appellant Shri H. Jayathirtha , Authorised Representative for the Respondent ORDER PER : R. BHAGYA DEVI Mr. Afsar Ulla Shariff (appellant), upon examination of his baggage it was found that in one of his bags US$ 100 (300 Nos.), Euros 100 (24 Nos.) and Euros 50 (163 Nos.) and 500 Saudi Arabian Riyals (22 Nos.) were found all bundled together and wrapped with one hand written paper along with his personal affects, total valued at Indian Rs.29,37,702/-. On enquiry, the appellant informed that these curre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank charges and rejecting an amount of Rs.2,755/-. However, at para (iv) of the order portion, it is stated that he has adjusted the penalty amount of Rs.9,00,000/- each imposed on Mr. Fazal Akrami and Mr. Mohammed S. Bahadur from the amount sanctioned to the appellant. Further the original authority has stated that after observing the pre-audit observation which stated the arrears arising out of Order-in-Original No.83/2016-17 dated 23.03.2017 against the other two notices, penalty of Rs.9,00,000/- imposed on Mr. Fazal Akrami and Mr. Mohammed S. Bahadur to be recovered from refund sanctioned. Against this Order-in-Original, the appellant filed an appeal before the Commissioner (A). The Commissioner (A) vide his Order-in-Original No.49/2023 dated 21.4.2023 referring to Section 142 of the Customs Act, with regard to recovery of sums due to government holds that since all the three persons have admittedly involved in the illegal act of smuggling foreign currency, thereby contravening the provisions of Section 113 of Customs Act, 1962 and Section 11 of Foreign Trade Development Regulation Act, 1992; there can be no illegality in the action taken by the refund sanctioning authority fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Fazal Akrami and Rs.9,00,000/- imposed on Mr. Mohammed S. Bahadur without any cogent reasons for the so-called adjustments of the penalties imposed on the co-noticees. On appeal filed by the appellant, the Commissioner (Appeals) upholds the order of the original authority justifying the deductions of the personal penalties of the co-noticees under Section 142 of the Customs Act, 1962. 8. First of all, I find no reasoning provided by the original authority for the adjustment of the personal penalties imposed on the co-noticees from the amount to be refunded to the appellant. Secondly, the Commissioner (Appeals) s justification of the above recoveries under Section 142 is beyond the scope of the Order-in-Original. However, one needs to examine whether Section 142 of the Customs Act 1962 allows recovery of personal penalties from the refund amount sanctioned to the appellant. Section 142 (a) of the Customs Act 1962 reads : SECTION 142. Recovery of sums due to Government. (1) [Where any sum payable by any person] under this Act [including the amount required to be paid to the credit of the Central Government under section 28B] is not paid, - (a) the proper officer may deduct or may r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... released on payment of redemption fine and personal penalty as provided under Section 125 of the Customs Act. The operative portion of the final adjudication order is as follows : I order that the confiscated Toyota Land Cruiser Jeep shall be redeemed to the importer on payment of a fine of Rs. 1,00,000/- (Rupees one lakh only) under Section 125 of the Customs Act. Duty and other charges leviable shall be paid as per the requirements. I impose a penalty of Rs. 25,000/- (Rupees twenty five thousand only) on Shri Abdul Rahman and Shri Yahoo and Rs. 50,000/- (Rupees fifty thousand only) on Shri Abdul Nazar under Section 112(a) of the Customs Act, 1962. The petitioner has remitted the import duty, redemption fine, other charges and the personal penalty imposed on him. However, Shri Yahoo on whom a personal penalty of Rs. 25,000/- was levied under the above order, has not remitted the same. Consequently the Customs authorities refused to release the car to the petitioner. The petitioner has filed this O.P. for a declaration that penalty imposed on Mr. Yahoo cannot be recovered from the petitioner and consequently petitioner is entitled to release of the vehicle without payment of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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