TMI Blog2009 (12) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... ation has been stated only to be Rs.2,000/- in the statements recorded from them as well as from the associates of Shri Ramesh separately, the penalty of Rs.50,000/- each imposed on them appears to be harsh on them. At the same time, the amount cannot be reduced to such an extent as to encourage them to commit the same wrongs repeatedly and it should also be deterrent enough to prevent other passengers to act as carriers. Hence, keeping both considerations in view, reduce the penalty in respect of the 11 passenger-appellants from Rs.50,000/- each to Rs.10,000/- (Rupees ten thousand only) each. In the result, the appeals filed by S/Shri G.V. Ramesh, Lakshmi Narayan, Kathiresan, Janakiraman and Parthiban are dismissed. The other 11 appeals filed by the 11 passenger-appellants are partly allowed by reducing the penalties imposed on them from Rs.50,000/- each to Rs.10,000/- (Rupees ten thousand only) each as indicated above - C/40-55/2009 - 1980-1995/2009 - Dated:- 24-12-2009 - Ms. Jyoti Balasundaram, Vice-President and Dr. Chittaranjan Satapathy, Member (T) S/Shri C. Natarajan, Sr. Advocate, A. Ganesh and Savith V. Gopal, Advocates, for the Appellant. Ms. Indira Sisupal, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used to take photographs of the passengers to whom the packets containing gold jewellery is handed over and to enable easy identification the same were sent by e-mail to the e-mail of ld. Shri G.R. Ramesh. He also stated that the passengers would hand over the gold jewellery only if their photograph is shown to them. further, he stated that out of two bundles of Indian currency of Rs.54,000/- recovered from his possession, one bundle of Indian currency of Rs.27,000/- (2*2500 + 11*2000) i.e. two sub-bundles of Rs. 2,500/ each and eleven sub-bundles of Rs.2,000/- each was to pay for the carriers as per the list and the second bundle of Rs.27,000/- is for meeting other incidental expenditure. The said documents and Indian currency were seized under the provisions of the Customs Act 1962." 3. The officials with the help of the above information intercepted 13 passengers arriving from Singapore at the Chennai Airport from whom the impugned gold jewellery, foreign currency were seized. Statements of these passengers were also recorded. After due investigation, the appellants herein were issued with the impugned show-cause notice and the case has been adjudicated by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o packets and 500 Singapore dollars all in 50 Singapore dollars denomination from each of the passenger were recovered and seized under 2 Mahazars dated 742-2007. On enquiry and in their voluntary statement the 13 passengers stated that the gold jewellery were handed over to them by a person at Singapore Airport along with 500 Singapore Dollars with an assurance that Rs.2500/- would be paid to them if they handed over the same to his, associate in Chennai, who would identify them by showing their photographs taken by the person at Singapore and they were specifically instructed not to declare the gold jewellery to Indian Customs and that in case, they were caught by Customs they would use the Singapore Dollars to pay the duty. All the 13 passengers were not able to produce any purchase documents for the, seized gold jewellery and they stated that they have not, purchased the same and the same did not belong to them. It is also evident from the records that all the 13 passengers have stayed in Singapore for more than six months. It is beyond doubt that the 13 passengers have been intercepted in pursuance of details found in the seized fax papers from the occupants of the Toyota Car, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 2 files respectively containing 31 Pages and 321 Pages were recovered and seized under a Mahazar and the files were found to contain documents such as fax message with details of 96 passengers namely flight no. and date, 2/500/2000 Passport no., description of the passengers arriving from Singapore to Chennai and baggage receipts for payment of duty on gold jewellery etc. One of the employees of Shri G.V. Ramesh, Shri. Dev Kishan Joshi, present during the search of the premises has stated that the seized 10,000 Singapore Dollars were brought by the passengers each time when they carried gold jewellery from abroad and were handed over to Shri G.V. Ramesh or his employees outside the Anna International Airport. The passenger manifest of the respective flights have confirmed the arrival of all the 96 passengers through Chennai, Anna International Airport on the respective dates and iris confirmed from the Deputy Commissioner of Customs, Chennai Airport that Customs Duty for the import of gold has been collected only for 7 out of 96 passengers. The gold jewellery brought by 89 passengers mentioned have not suffered any customs duty. It appears from the seizure of the baggage receipts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is also evident from the statement of Shri M. Akbar, proprietor of M/s. AAA Enterprises, where the Fax No. 25229271 has been in stalled that on 7-12-2007, Shri Lakshminarayanan, along with Shri G.V. Ramesh, had come to his shop and has collected the fax message and that Shri Lakshminarayanan who is known to him for a very long time and is an employee of Shri G.V. Ramesh, proprietor of Sree Abirami Jewellery, who used to come to his shop for collecting fax message, if the fax instrument does not work in their shop. Shri Akbar has also identified Shri Lakshminarayanan from his photograph. From the above it is evident that Shri Lakshminarayanan is an employee of Shri. G.V. Ramesh and has indulged in smuggling activities along with him. Shri Dev Kishan John and Shri Akbar have not retracted their statements and hence the same were taken as evidence on record. Out of the Indian currency of Rs.54,000/- seized from the possession of Shri Lakshminarayanan, Rs.27,000/- was in two bundles of Rs.2500/- and 11 bundles of Rs.2000/- which confirms that they have been kept ready for paying the passengers while receiving the jewellery packets and Singapore dollars from them and Shri Lakshmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fax copy containing details of passengers and goods being brought by them is confirming the modus operandi adopted by the defendant. The 10,000 Singapore dollars seized from the premises of M/s. Sree Abirami Jewellery were all in 50 Singapore dollar denominations which is similar to the denomination of the Singapore dollars seized from the 13 passengers on 742-2001 and as stated by Shri Dev Kishan Joshi, the amount was collected from earlier passengers coming from Singapore who were employed to carry gold jewellery. In the submissions made-during the personal hearing, it is submitted that as per FEMA, a person can keep unspent amount up to 2000 US dollars and that Shri G.V. Ramesh was keeping the amount to surrender it to the authorized dealer of foreign exchange and he had 90 days to do so and has produced an attested/true copy of his Pass port to prove his last date of return i.e. 27-10-2007 and that Es. 10,000/- Singapore dollars belong to him and will not attract Section 111 and (d) of the Customs Act, 1962. But Shri G.V. Ramesh has not produced the source of the foreign currency seized i.e., from which authorized foreign exchange dealer the 10,000 Singapore dollars were p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evident that Shri G.V. Ramesh masterminded the smuggling operation arid carried it out with the help of his employees Shri Vijay, Lakshminarayanan, Parthibart, Kathiresan and Janakiranmn with a novel modus operandi to smuggle gold in the form of jewellery from Singapore using passengers who are otherwise eligible to import gold for personal use on payment of appropriate customs duty, with instructions not to pay the customs duty and enticing them with monetary benefit at the time of handing over the gold jewellery so brought by them at Chennai Airport. Hence, Shri G.V. Ramesh, Vijay, lakshminarayanan, Parthiban, Kathiresan and Janakiraman are liable to penal action under section 112 of the Customs Act, 1962. Further a serious view is to be taken as they tried to abuse the concessions and facilities granted by Govt. of India by hiring the passengers for pecuniary gains. The 13 passengers have brought the gold jewellery and foreign currency given by Shri Vijay at Singapore agreeing to handover (he same and the 500 Singapore dollars without paying customs duty as instructed, outside the Airport to the persons who would identify them and pay them carrying charges of Rs.2000/2500. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1962 for abetting the smuggling activities in connivance with Shri G.V. Ramesh." 4. In view of the above finding, the adjudicating Commissioner has absolutely confiscated the seized gold jewellery arid the seized foreign currency. He also imposed penalties of Rs.50,000/- each on the passengers in addition to pert- ally of Rs.10,00,000 on Shri G.V. Ramesh, Rs. 2,00,000/- on Shri Lakshmi Narayan and Rs.1,00,000/- each on S/Shri Parthiban, Kathiresan, Janaki Raman and Vijay. He has also confiscated 10,000 Singapore dollars seized from Shri Abirami Jewellery owned by Shri Ramesh and allowed redemption of the same on payment of a fine of Rs.1,50,000/-. The Toyota Quails car was also confiscated but allowed redemption on payment of a fine of Rs.1,00,000/-. The Indian currency of Rs.54,000/- has however been released. 5. Shri C. Natarajan, learned senior counsel appearing, on behalf of the appellants argues inter alia as follows:- (i) The passengers were intercepted before they could go to the proper officer of customs and declare the gold and foreign currency with each of them and hence the interception and seizure of the gold has been prematurely done. It would have been a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jewellery and the foreign currency brought by the passengers. These declarations are contrary to the plea taken before the Tribunal that the passengers had intended to declare the impugned gold and foreign currency. She states that the appellants have not submitted any contrary evidence to substantiate their plea or to dispute the declaration forms submitted by them at the time of interception. 8. She further states that all the 13 passengers (including 2 who are not appellants before the Tribunal) have voluntarily admitted on the date of seizure that the impugned gold and foreign currency did not belong to them. They also made no plea at the time regarding the same being their bona fide baggage nor they prayed for redemption of the same. They were merely carrying the gold for a monetary remuneration. The original statements dated 7-12-2007 were no doubt retracted by a letter dated 12-12-2007 but subsequently the 11 passengers who are appellants before the Tribunal have retracted their retraction. They have also stated that the retraction given on 12-12-2007 was given under threat from Shri Ramesh and on offer of remuneration. The learned DR states that the passengers have adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Honble Supreme Court in the cases of Sheikh, Mohd. Omer v. Collector of Customs - 1983(13) E.L.T. 1439 (S.C.) and Om Prakash Bhatia v. Commissioner of Customs - 2003 (155) E.L.T. 423 (S.C.) in addition to the decision of the Tribunal in the case of Vittal Bijoy Bhosle v. Commissioner of Customs - 2008 (230) E.L.T. 624 to stress the point that the impugned gold jewellery which were brought into India without filing the necessary declaration with a view to evading prohibitions and the payment of customs duty thereon have to be considered as prohibited goods and the release of the same on payment of redemption fine should not be allowed. 12. We have considered the submissions from both sides as well as the records of the case. The adjudicating Commissioner was called upon in this case to adjudicate the case before him on the basis of evidence brought on record as a result of the investigation undertaken by the Department. The proceeding before him was not a criminal trial and hence the standard of proof required was that of preponderance of probability and not proof beyond reasonable doubt. We have reproduced his findings at length for the purpose of examining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Act, 1962. Hence it is not necessary for us to dwell at length as to whether the imported gold jewelleiy are prohibited goods or not and consequently whether Section 111(d) is applicable or not. Even if sub-section (d) of Section 111 is held not to be applicable, non-declaration of the impugned gold jewellery and foreign currency render them for confiscation under Section 11 of the Act which has been applied by the Adjudicating Commissioner. 15. All the evidence gathered by the Department and recorded in the finding of the adjudicating Commissioner go to prove the involvement of Shri Ramesh as well as his other associates namely S/Shri Lakshmi Narayan, Parthi ban, Kathiresan, Janakiraman and Vijay as has been held by the adjudicating Commissioner. The foreign currency seized from Sree Abirami Jewellery and the impugned car, in our view, have also been rightly held liable for confiscation for the reasons stated in the impugned order. 16. As regards the plea of the learned senior counsel for allowing redemption of gold and foreign currency recovered from the passenger-appellants and absolutely confiscated, we are of the view that once the finding of the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jaj Ahmed (supra), we have decided that the impugned goods and foreign currency seized from the passenger-appellants cannot be allowed to be redeemed by them on payment of a fine and duty as the same do not belong to them but to some one else as per the finding of the adjudicating Commissioner. 18. We also do not find any ground to reduce the redemption fine on the impugned car and the foreign currency seized from Shri Abirami Jewellery or to reduce the penalties imposed upon the appellants Shri G.V. Ramesh arid his associates as the penalties imposed on them are commensurate to the offences committed. 19. As regards the penalties imposed on the individual passengers, we find that they have been penalized to the extent of Rs.50,000/- each. The same is little less than 10% of the value of the confiscated gold jewellery and foreign currency recovered from each of them. Considering the fact that they were induced by Shri Ramesh and his associates to carry the impugned gold jewellery and foreign currency for a consideration and the consideration has been stated only to be Rs.2,000/- in the statements recorded from them as well as from the associates of Shri Ramesh separately, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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