JYOTI AGARWAL Vs. COMMISSIONER OF CUSTOMS, CALCUTTA

JUDGEMENT

(1.) THIS appeal has been filed by Shri Jyoti Agarwal of Khalpara, Siliguri against the order dated 26 -4 -2000 of Commissioner (Appeals), Calcutta whereunder the Order -in -Original dated 29 -7 -1999 of Assistant Commissioner of Customs, Naxalbari Customs Division, Siliguri was upheld in which Indian currency of Rs. 33,500/ - and 100 gms. of cardamom valued Rs. 20/ - were confiscated absolutely under Section 121 and Section 111(d) respectively of the Customs Act, 1962 and a penalty of Rs. 500/ - was imposed under Section 112 ibid on Shri Jyoti Agarwal.

(2.) THE matrix of the case is that a Maruti Van bearing No. AS -14 -4492 proceeding towards Siliguri was stopped and checked by the officers of customs in front of Naxalbari Customs office in which they found the appellant, besides the driver. They were taken to the said customs office and were searched in the presence of two witnesses which resulted in the seizure of the aforementioned cardamom and Indian currency. No other incriminating material was found either on the person of the said individuals or in the vehicle. In interrogation, through his statement the appellant disclosed that he indulged in purchase of betel -nuts in Nepal and sell the same to Shri S.K. Ghosh of M/s. Ghosh Enterprises at Railgate, Siliguri and the Indian currency was the sale proceeds of the small cardamom and betel -nuts previously purchased from M/s. Shiv Store at Dhulabari, Nepal. He further disclosed that the small pocket of cardamom recovered from the pocket was just a sample for tallying with the delivered consignment. He stated that the vehicle belonged to his friend and the driver was hired at Siliguri taxi stand. He admitted that once he was involved in smuggling of music system. He pleaded guilty of his offences. In his statement the driver Shri Dulal Roy stated that he did not know the name of the appellant but saw him several times at Kalpara with one Shri Fakir Chand. He further stated that the appellant was involved in smuggling of betel -nut from Nepal. On 27 -10 -1998, at Dhulabari, he noticed appellant transacting money at one shop and took sample of small cardamom from a dealer. From the said two statements, the Customs felt that the appellant was involved in smuggling of betel -nut and small cardamom and inferred that the Indian currency under seizure was part of the sale proceeds of betel -nut and small cardamom. The said 100 gms. of cardamom and the Indian currency of Rs. 33,500/ - were placed under seizure on 27 -10 -1998. A show cause notice was issued to the appellant on 6 -4 -1999 proposing to confiscate the said cardamom and the Indian currency and proposing penal action against the appellant under the Customs law and the Foreign Exchange Regulation Act. The appellant stoutly denied all the allegations contained in the said show cause notice. As regards 27 notes of Indian currency of Rs. 500/ - denomination, the appellant explained that while returning from Nepal he exchanged Rs. 100/ - denomination notes for Rs. 500/ - denomination notes with his friend at Naxalbari who was in dire need of the same. He vehemently denied the charge of his involvement in smuggling activities. He alleged that a false case was made against him when he approached the Customs officers at Naxalbari to enquire whether there was any hindrance in undertaking a journey to Nepal by Bus in connection with his sisters ensuing marriage on 3 -12 -1998. He explained that he visited Nepal with a view to hire a bus from Nepal for his sisters marriage with a bridegroom residing in Nepal and for that purpose he took with him Rs. 33,500/ -, all of notes of Rs. 100/ - denomination. Being not convinced with the appellants explanation. Assistant Commissioner of Customs, Naxalbari Customs Division vide his order dated 29 -7 -1999 has confiscated and imposed a penalty of Rs. 500/ - on the appellant. The appeal filed against the said order was rejected by Commissioner (Appeals) vide his order dated 26 -4 -2000. Hence, the present appeal before the Tribunal.

(3.) ARGUING the case himself, the appellant submits that the Customs officers threatened to seize the vehicle in which case he would run the risk of indemnifying its owner and tremendous pressure was exerted on him by the Customs Officers to give a statement as per their dictation. This fact was made known to the Assistant Commissioner on 27 -10 -1998 over telephone followed by a letter dated 19 -11 -1998. The appellant further submits that he retracted his statement on the next day, i.e. 28 -10 -1999 affirming the facts swearing in before Notary of Public, Siliguri which was sent to Assistant Commissioner on 17 -11 -1998. The Customs Authorities should not have relied upon such a retracted statement. As regards the statement of the driver, the appellant contends that it was obtained when the driver was in a stage of intoxication and it was self -contradictory, vague, ambiguous and uncorroborated and as such liable to be rejected outright. Refuting the charge that the Indian currency seized from him was sale proceeds of the smuggled betel -nuts and cardamom and relying on the decision of the Tribunal in Ramachandra v. C.C. - 1992 (60) E.L.T. 277 (T), the appellant argues that the authorities below failed to appreciate that for invoking Section 121 of the Customs Act, 1962, the ingredients required are - (i) there must a sale; (ii) the same must be of smuggled goods; (iii) the sale must be by a person having knowledge or reason to believe that the goods are of smuggled origin; and (iv) the seller and purchaser and the quantity of the goods involved must be established by the Customs authorities. In his case, the appellant pleads, none of the aforementioned ingredients were satisfied and as such the seizure of the Indian currency ab initio was unjustified and illegal. He adds that the Customs have not brought any documentary evidence to establish sale and purchase of the smuggled betel -nuts and cardamom or there was any seizure of the betel -nuts and cardamom from his possession in the period immediately proceeding the present seizure of Indian currency. He argues that the Adjudicating Authority erred in relying on a case booked against him involving one old and used music system presented to him by his maternal uncle. He submits that it was not relied upon in the show cause notice and moreover that case is sub judice. He strongly pleads that it is impermissible to rely on such an extraneous evidence. He further argues that he was not given an opportunity to cross -examine the driver. While advancing the above arguments, in addition to the case -law relied upon in the proceedings before the authorities below, he refers to the undermentioned case -law :