TMI Blog2019 (3) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. - APPEAL No. C/85064/2018, C/CO/85260/2018 - A/85443/2019 - Dated:- 8-3-2019 - Mr. Sanjiv Srivastava, Member (Technical) Shri J.C. Thakkar (self) for appellant Ms. P. Vinitha Sekhar, Additional Commissioner (AR) and Ms. Trupti Chavan, Assistant Commissioner (AR) for respondent ORDER This appeal is directed against the order in original No Commr/VRM/Adjn/0-2017-18 dated 02.01.2018 of Commissioner of Customs, Airport Mumbai passed in remand proceedings. By the said order Commissioner has held follows: 22.1 I order absolute confiscation of Indian Currency amounting to ₹ 20,10,000/- and Foreign Currency equivalent to Indian Currency of ₹ 1,88,349/- totally valued at ₹ 21,98,349/- which were recovered from Shri Jitendra Chimanlal Thakkar under Section 13 (d). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quivalent to Indian Currency of ₹ 1,88,349/- totally ₹ 21,98,349/- (Rupees Twenty One Lakhs Ninety Eight Thousand Three Hundred and Forty Nine only) now under seizure should not be confiscated under the above said provisions of Customs Act, 1962. b. Pair of socks, Small Checkered Coat and Black Coloured Zipper hand bag having marking SATCHI used for concealing the Indian and Foreign Currency under seizure should not be confiscated under Section 118 and 119 ibid. c. Penalty should not be imposed on him under section 114(i) ibid. 2.6 Show Cause Notice was adjudicated by Commissioner vide his order No SD/INT/AIU/28/01/APA dated 04.06.2004. The said order of Commissioner was set aside by the tribunal vide Order no A/89890/16/CB and matter remanded back to the Commissioner for re-adjudication after following the principles of natural justice. 2.7 Commissioner has vide impugned order adjudicated the matter in remand proceedings. 2.8 Aggrieved appellant has filed this appeal. 2.9 Revenue has filed cross objections to the appeal filed by the appellants 3.1 In his appeal appellants has stated that- i. He has been falsely implicated by the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appellant. He admitted that he was also known as Jitendra Chimanlal Thakker and had concealed the facts by changing his name and other credentials. This case was adjudicated by the Commissioner vide his order No Commr/PVR/ADJ/08 dated 31.03.208, confiscating the seized foreign currency and imposition of personal penalty of ₹ 4,00,000/-. Appeal (Appeal no C/375/08) filed against the said order of Commissioner has been disposed off by the tribunal. ii. The Indian Currency had been recovered and seized by the Custom officers from the appellant under a proper panchnama and the fact about recovery of the said currency has been admitted by the appellant in his statement. iii. Appellant was knowingly involved in carrying, possession, concealing, dealing and attempting to smuggle out Indian and Foreign Currency which has been seized and confiscated. iv. Pursuant to the directions given by the CESTAT vide orders dated 01.09.217 personal hearing was fixed on 14.12.017 and the Appellants were duly intimated vide letter dated 30.11.2017. Further taking into account the apprehensions expressed by the appellant, his request for cross examination of panchas was allowed ad appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spot admitted about the carriage of the said currency and also its recovery from him. The fact of recovery and deposit of the currency with state bank of India has been confirmed by the Commissioner in the affidavit dated 5th December 2018. Also the appellant is habitual offender and this fact is evidenced by the order dated 31.03.2008 confiscating the foreign currency of ₹ 33,06,667.60/- from the same appellant but under different name and passport number. Since Appellant is habitual offender he deserves no mercy of any kind and also the penalty imposed by the Commissioner is not excessive. 5.1 I have considered the submissions made in appeal and during the course of hearing. 5.2 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 Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01. 5.8 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. In her affidavit after stating the facts and history of the case leading to recovery and seizure of Indian and Foreign Currency, Commissioner has in para 4 (c) (d) stated as follows- (c) As per the available office records, the seized currency under Panchnama dated 15.08.2001 was deposited in DS-1 on 15.08.2001 vide register entry No DS/1/35/2001 (copy enclosed). Subsequently the said seized currency was transferred in Strong Room vide register entry no 73. Thereafter, the procedure u/s 110 of the Customs Act, 1962 was initiated on 23.08.2001. The packets of seized currency was opened in the presence of Hon ble Special Metropolitan Magistrate, Shri Shyam V Patil under Panchnama dated 23.08.2001. He vide his certificate dated 23.08.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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. In his statement recorded then he has not even mentioned about the Foreign Currency being given to him by Harmit Brother in Singapore. Nowhere in the proceedings over the last 18 years, this has been stated and it was only after the re-adjudication of the case by the Commissioner in remand proceedings that this certificate from Harmit Brothers has been produced. 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 to the effect That the amount of U S Dollars 5000/- was provided to Mr Jitendra Thakkar by our above named company to keep it in his pocket as a show money and to meet his personal expenses whilst he is on business tour on our behalf towards Gulf Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 20, found that the appellant has manipulated his identity and passport, and was involved in the case of smuggling of foreign currency again in 2006. The said para of Commissioner order is reproduced below: 20. I find that Noticee has failed to substantiate his claim by submitting any evidence with regard to procurement of seized Indian/Foreign Currency. In absence of any such evidence, the procurement of the currency itself becomes tainted and it can safely be concluded that currency has been obtained through illegal channels. It is also observed from the Order-in- Appeal No. MUM-CUSTM-PAX-APP-188/13-14 dated 08.10.2013 that the Noticee had also used another passport in the name of Jayendra Chandulal Thakkar and assorted foreign currency equivalent to Indian ₹ 33,06,667/- was also seized on 14.03.2006, which was found in his possession. It is also observed that 85 mobile phones valued at ₹ 18,53,000/- were also seized on his arrival from Switzerland on 04.09.2003 in Banglore. It is therefore, apparent that the appellant is a habitual offender, well conversant with the rules and regulations concerning import and export and his deposition regarding opportunities o ..... 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