RAJESH KUMAR SONI AND SHRI KRISHNA Vs. CC

JUDGEMENT

(1.) THESE appeals are against the order of the Commissioner (Appeals) rejecting the order of the original authority whereby a penalty of Rs. 25,000 had been imposed under Section 112 of the Customs Act on Krishna Prasad Keshari (appellant in A. No. C/290/2002) and Indian currency of Rs. 2.5 lakhs on which a claim of ownership had been staked by Shri Rajesh Kumar Soni (Appellant in A. No. C/289/2002) was confiscated under Section 121 of the Act.

(2.) EXAMINED the records and heard both the sides. The relevant facts of the case are as under: Officer of Customs recovered 14 gold biscuit of foreign origin valued at over Rs. 7 lakhs from the possession of two Nepali nationals namely S/Shri Dil Prasad Sapkota and Gyan Hari Sapkota on the premis that the gold biscuits had been smuggled into India from Nepal. The officers seized the goods under a panchnama. The two Sapkotas, in their statements recorded by the officers, stated that the gold biscuits were meant for delivery to one Shri R.C. Jaiswal. In a follow -up action at the residence of Shri Jaiswal, the officers recovered a telephone diary as well as certain goods which were believed to be meant for packing gold biscuits. During the search operation on 19.4.99, Shri K.P. Keshari (one of the present appellants) turned up at Jaiswal's premises. The customs officers searched his person and recovered Indian currency of Rs. 2.5 lakhs. Shri Keshari stated that he was an employee of one Shri A.K. Verma's readymade shop and that the currency had been given to him by Shri Verma for delivery to Shri Jaiswal as consideration for 5 foreign gold biscuits which had been delivered a week ago by Shri Jaiswal to Shri Verma. The currency was seized under Section 110 of the Customs Act on the basis of Keshari's statement that the same was sale proceeds of foreign origin gold/Show cause notices were issued to K.P. Keshari and others including Jaiswal, Verma and the two Sapkotas. The original authority absolutely confiscated the 14 gold biscuits under Section 111(d) of the Act and the Indian currency under Section 121 of the Act. Penalties were imposed on the five persons including Keshari on whom a penalty of Rs. 25,000 was imposed. During the investigative stage of the case, Shri R.K. Soni had staked ownership over the currency; but apparently he was not accepted as a party to the proceedings. Alongwith Kesari, R.K. Soni also preferred appeal to the Commissioner (Appeals), aggrieved by the confiscation of the currency. The appeals were rejected. Hence the present appeals.

(3.) THE learned Counsel for the appellants submits that the order of confiscation of currency behind the back of R.K. Soni who had claimed ownership at the very initial stage of investigation is bad in law. In this connection, he referred to the provisions of Section 124 of the Customs Act. Arguing on behalf of K.P. Keshari, the Counsel submits that the appellant had nothing to do with the gold biscuits seized and confiscated and therefore, no penalty was liable to be imposed on him. It has been the contention of the appellant that the currency of Rs. 2.5 lakhs was being taken from Verma to Jaiswal as consideration for 5 gold biscuits delivered a week ago by Jaiswal to Verma. There is no evidence to controvert this contention of the appellant, nor is there any seizure/confiscation of those gold biscuits which were allegedly sold by Jaiswal to Verma a week ago. In this connection, the learned Counsel relies on the Tribunal's judgment in Ramchandra v. Collector of Customs, 1992 (60) ELT 277 wherein the necessary requisites for imposition of penalty on the ground of violation of Section 121 were laid down. Counsel submits that none of these requisites was fulfilled in this case and therefore, the penalty imposed on Keshari cannot be sustained.