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TMI Blog2019 (3) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... Currency under seizure, under Section 118 and 119 of the Customs Act, 1962. 22.3 I impose a personal penalty of Rs. 3,00,000/- on Shri Jitendra Chimanlal Thakkar under Section 114(i) of the Customs Act, 1962." 2.1 Appellant was intercepted by the officers of Air Intelligence Unit at airport on 15.08.2001, while he was on his way to board the Singapore Airlines Flight (SQ 4111). 2.2 During the search of the Appellant in person and of his baggage, he was found carrying Indian Currency (Rs 20,10,000/-) and Assorted Foreign Currency ( equivalent to Rs. 1,88,349/-). The search proceeding were conducted in presence of two panchas namely Shri John Joseph Fernandes (P-1) and Shri Ajit Jayant Naik (P-2) and a panchnama dated 15.08.2001 drawn. 2.3 Since Appellant was unable to explain about the currency being carried by him, or produce any document in respect of the same the said currency was seized by the officers along with the personal effects and bags of the Appellant used for carriage of the currency. 2.4 In his statement recorded under Section 108 of Customs Act, 1962 on 15.08.2001, Appellant admitted that the i. Indian Currency was handed over to him by Shri Rajendra Malhotra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2001 is imaginary and false document never recorded in his presence or in presence of the panchas. iv. The statement recorded from him is also false and fabricated which was signed by him under duress and coercion and physical assault. v. The SCN dated 12/02/2002 itself is a sufficient proof that this is a knowingly initiated false case as the modus operandi of concealment as stated in the SCN is impracticable which takes us to the recovery of Rs. 20,10,000/- in denomination of Rs. 1000/-. vi. The request for cross examination and demonstration to disprove the main allegation of alleged concealment was blatantly denied by the Commissioner as she was aware such cross examination/ demonstration will bring to surface the falsehood of the case. vii. The alleged Indian currency of Rs. 20,10,000/- recovered from him would eventually be deposited in a nationalized bank. However, none whatsoever bank receipt, a photocopy is on record. viii. When one of the pancha (P-1) was cross examined in the trial court he deposed "It is true that the personal search of the Accused was not carried out in my presence. It is true that nothing has been recovered from the possession of the Accused and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m him was not deposited in the bank is totally incorrect. In fact the currency was deposited in State Bank of India vide MJC/Add/10 dated 23/8/2001. vi. The principles of natural justice have been duly followed and opportunity of personal hearing extended to the appellant. It was the appellant who decided not to appear. 4.1 I have heard the Appellant in person and Ms P Vinita Shekhar, Additional Commissioner with Ms Trupti Chavan, Assistant Commissioner, Authorized Representatives for the revenue. 4.2 Appellant has during the course of hearing made demonstration to show that I was not possible him to carry the Indian Currency as alleged in the show cause notice. He emphasized that he has been implicated in a false by the Customs Officer and the entire proceedings undertaken as per panchnama dated 15.0.2001 were fabricated. Panchnama was neither drawn in his presence or in presence of the panch witnesses. He was not carrying any Indian currency which has been stated to be seized and recovered from him. Since no Indian currency was recovered or seized from him, he disowns the entire Indian Currency under seizure as per panchnama date 15.08.2001. He was only carrying the Foreign Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely. In his submission he stated that no search or panchnama was drawn at that time. However said submissions made by the appellant are contrary to facts and proceedings. 5.4 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. 5.5 In his Application for retraction in R A No 276 of 2001 filed by him before the Court of additional Metropolitan Magistrate, 3rd Court Esplande, Mumbai on 18.09.2001 appellants has admitted to the panchnama being drawn by stating "The copy of the panchnama was not given to me though my signature was already obtained under the pretext that it has been furnished to me." Above submission clearly shows that panchnama was drawn on 15.08.2001. If the grievance of the appellant was that the copy of panchnama was not been given to him, he could have easily obtained the same from the said court of additional metropoli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 I do not find any merits in the submissions made by the appellant in this respect. 5.10 The submission made by the appellant to the effect that panchnama dated 15.08.2001 was an instrument to falsely implicate him in the case of smuggling of Indian Currency is a self defeating argument. If the said panchnama is to be discarded then, the entire proceedings get vitiated even the proceedings in relation to seized foreign currency. Though Appellant denies the existence of Indian Currency but admits the existence of Foreign Currency. If it is the case of Appellant that no panchnama was drawn etc, then how he proceeds to claim the foreign currency seized which is part of the said panchnama. Either there was no panchnama drawn as sought to established by the Appellant then he also loses the case in respect of recovery and seizure of foreign currency too. While disclaiming the Indian Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te do not inspire any confidence vis a vis the transaction mentioned therein and hence cannot be accepted or allowed at this stage of proceedings. 5.13 Commissioner has in para 14.8 of the impugned order while discussing the issue in relation to the Foreign Currency seized has observed as follows: "14.8 From the records of the case as well as from the submissions of the Noticee it is evident and established that the Noticee was a resident of India and he was in possession of foreign currencies equivalent to Indian Currency amounting to Rs. 1,88,349/- which is equivalent USD 4095, which exceeded the maximum limit of USD 2000 as prescribed under the aforesaid Regulation for the purpose of retention of foreign exchange by an Indian resident. The Noticee has not produced any evidence about the acquisition of the said foreign currency. He has only stated that these represented the commission earned by him against of sale of various items which were procured by him from the Far East Asian countries for delivery in European countries. In absence of any evidence him claim regarding the acquisition of said foreign currencies abroad is not acceptable. However, even if his claim is accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri - Mumbai) CESTAT has upheld absolute confiscation as the appellant had failed to produce documentary evidence regarding licit possession of the goods. The ratio of the above cases is squarely applicable to this case. I am therefore, inclined to agree with the findings of adjudicating authority in denying redemption of the currency." 5.15 Since appellant is a habitual offender and has been involved in the case of smuggling of Indian and Foreign currency more than once, I have no hesitation in upholding the penalties imposed under section 114(i) of the Customs Act, 1962. 5.16 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. The correspondence in this respect between the office of adjudicating authority and the appellant is reproduced below: 5.17 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 authoriti ..... 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