COMMISSIONER OF CUSTOMS, VISAKHAPATNAM Vs. ASHISH MOKASHI SHARAD

JUDGEMENT

(1.) THE Revenue is aggrieved with Order -in -Appeal No. 20/05 -C.E., dated 22 -6 -2005 passed by the Commissioner (A) has set aside the personal penalty imposed on the Respondent who is the Captain of the Ship (M. V. Darya Gyan) in terms of Section 112(a) of the Customs Act, 1962. The facts of the case are that the Respondent is the Master of the Ship M. V. Darya Gyan, which arrived from Singapore and berthed at Vizag and was rummaged by the Customs Officer on 3 -8 -2002. During the course of rummaging the Respondent was asked if he was in possession of any foreign currency, to which the Respondent in the conformity voluntarily declared the currencies. The Revenue proceeded against him on the ground that it was not declared in the Currency List forming part of the vessels manifest of stores filed by the Master under Section 30 of the Customs Act, 1962. The same was seized under Section 110 on reasonable belief of illicit importation and proceedings initiated. The Respondent had contended that the currency declaration was ready and submitted when the statement was recorded; that the boarding officer did not take the possession of the currency declaration initially; that the rummaging did not yield anything other than the currency disclosed voluntarily which is also on record; that the voluntary disclosure is as per regulation in force; that it did not amount to smuggling of foreign currency; and that the penalty imposed was not justified on merits including the quantum. The Commissioner (A) in Paras 7 - 12 have recorded the finding as follows.

(2.) THE Revenue is aggrieved and contends that the foreign currency was undeclared and therefore, it was liable for confiscation and for fine and penalty. The Revenue is now invoking Section 3 of the Foreign Exchange Amendment Act, 1999 in the grounds of appeal for imposition of penalty. This is contested by the Respondent in their cross -objection and in written submission on the ground that these grounds are fresh grounds and had not been taken at the initial stage and hence, they are not to be allowed to be pleaded. He has also stated that he has not given any statement that the Indian Currency were proceeds of sale of smuggled goods, therefore they are not confiscable in terms of the statements stated by the Commissioner. It is also contended that the Order -in -Original is not a speaking order as held by Commissioner (A). The seizure of Indian and Foreign Currency is not as per law as held by the Commissioner (A). It is also contended that the Boarding Officer failed to collect the currency declaration form and latter officers rummage did not yield any seizures. They seized rather grabbed currency when the Master of the Ship (Respondent) voluntarily disclosed. But for the Masters honesty, the rummaging party could not have known about the existence of the foreign currency if tucked away in the vast ship. They could not find any other seizable item. It is submitted that it was due to voluntary disclosure by the Respondent along with the currency declaration form submitted by the Respondent and it was not as a result of seizure of the same from him on rummaging. Therefore, there is no ground for imposing penalty. Further it is stated that fresh ground has been brought in grounds of appeal which cannot be taken for consideration.

(3.) THE learned JCDR argued for the Revenue and prayed for confirming the Order -in -Original. The Respondent has sent written submissions and prayed for accepting the Order -in -Appeal.