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2019 (3) TMI 713 - AT - CustomsSmuggling - Indian Currency - Assorted Foreign Currency - baggage rules - admissibility of evidence - Section 108 of Customs Act, 1962 - Held that:- If it was a movie or a drama and theatrics and rhetoric of appellant could be considered as evidence of his innocence, appellant would have succeeded long back in establishing that he has been falsely implicated in the case of seizure of Indian Currency and Foreign Currency totaling to ₹ 21,98,349/-. However the case proceedings are not part of any movie or drama but are based on facts and evidences recovered as part of the proceedings leading to recovery, seizure and confiscation of Indian and Foreign Currency. The appellant was arrested after recovery of the said Indian and Foreign Currency and was produced before the Magistrate at Esplande Court on 16/08/2001. Magistrate after taking the cognizance of the offence committed remanded him to judicial custody and was bailed out only after two weeks. During the proceedings before the Magistrate appellant could have contested the said recovery which he didn’t. From the panchnama drawn for verification of the Currency recovered and seized as per panchnama dated 15.08.2001 the fact about availability of both the Indian and Foreign currency is verified in presence of Special Metropolitan Magistrate. Panchnama dated 15.08.2001 and the Sealed Packets bearing P O Seal No 131 were also verified and the packets opened and the Currency also verified. This document is enough to establish the authenticity of the panchnama drawn on 15.08.2001 - To verify the facts disputed by the appellants during the course of hearing to the effect that no Indian Currency was recovered and seized from him, and no such currency is available, Commissioner Customs, Airport Mumbai was asked to cause an verification and file an affidavit testifying the facts about availability and deposit of the said currency. In compliance Commissioner has filed duly notarized affidavit dated 5th December 2018. From the affidavit filed by the Commissioner, it is quite evident that both Indian and Foreign Currency were duly inventorized at the time of seizure and after verification of the same by Special Metropolitan Magistrate; the same was disposed of by way of depositing the same with State Bank of India. In view of the said evidences, there are no merits in the submissions made by the appellant in this respect. Since appellant is himself not claiming the Indian Currency and has in appeal and during the course of hearing before CESTAT the same, the order of Commissioner, absolutely confiscating the Indian Currency is not in challenge in this appeal and is upheld. Foreign currency seized and confiscated - Held that:- There are no merits in the claim made by the appellants, as it is contrary to his statement recorded on 15.08.2001 wherein he has deposed that the foreign currency was brought from abroad on his earlier trip from Switzerland which is less than US$ 5000/- and therefore he has not declared it to Customs - From the face of order it is evident that Commissioner has issued the re-adjudication order on 02.01.2018 and Certificate of Harmit Brothers is dated 12th January 2018. Production of such a certificate after the adjudication of the case in remand proceedings is nothing but an after-thought. Secondly I do not find any merits in the statement made in the certificate - The said certificate do not specify as to what was the business relationship between the Harmit Brothers and Appellant, which had prompted them to give sum of US$ 5000/- to the Appellants. Further the date and document evidencing the payment of said amount of US$ 5000/- by Harmit Brothers to appellant is not stated and enclosed with the Certificate. The certificate do not inspire any confidence vis a vis the transaction mentioned therein and hence cannot be accepted or allowed at this stage of proceedings. Penalties - Held that:- Since appellant is a habitual offender and has been involved in the case of smuggling of Indian and Foreign currency more than once, there is no hesitation in upholding the penalties imposed under section 114(i) of the Customs Act, 1962. Principles of natural justice - Held that:- Appellant cannot plead violation of principles of natural justice In the present case because he had been offered the opportunity of personal hearing and cross examination of panchas by the Commissioner which he deliberately refused and asked for the order on merits. Apart from making an attempt to show that he was not carrying Indian Currency recovered and seized from him contrary to the evidences and records available, appellant has not stated anything except accusing the authorities including Metropolitan Magistrate for framing and falsely implicating him in the case of smuggling of Indian Currency. Since all the evidences are contrary to the submissions and rhetorics of the appellant I am not in agreement with any of submissions made. Appeal dismissed - decided against appellant.
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