RAJIV GUPTA AND ANR. Vs. CC

JUDGEMENT

(1.) THESE are two appeals filed by the appellants viz. Shri Rajiv Gupta and Ajay Gupta against the Order -in -Original dated 2.9.1993 passed by the Collector of Customs, New Delhi imposing penalty of Rs. 50,000/ - on Ajay Gupta and Rs. 25,000/ -on Shri Rajiv Gupta under Section 112 of the Customs act 1962. Learned Counsel for the appellants has contended that there is no provision in the Customs Act for punishing the attempt to commit an offence; that by release of the currency, the independent corroboration has gone; he has drawn our attention to paras 3, 4 and para 13(v) of the show cause notice and submitted that after reading of the said paras one can easily make out that the offence wishing to receive is not punishable under the Customs Act though it may be punishable under other provisions of Law like FERA and NDPS. In this regard he relied upon the decision in the case of Punit Kumar Sakhuja and Another reported in 2001 (43) 797 (T). He also contended that assuming but not admitting if on the basis of allegations an offence to attempt is made out, that would also not be punishable in view of the leading case on the subject in the case of Malkiat Singh reported in, AIR 1970 SC page 713. He contended that this decision of the Hon'ble Apex Court has been followed by this Tribunal in the case of Karnataka Trading Company reported in . The learned Advocate has, therefore, forcefully contended that for the aforesaid reasons, the penalty imposed on both the appellants may be set aside.

(2.) LEARNED DR appearing on behalf of the Revenue has contended that the release of the foreign currency does not mean that the appellants are absolved of the charges levelled against them; he contended that everything has been admitted by the appellants as in the show cause notice and as such smuggling has already taken place. He also contended that the case law cited by the learned Advocate for the appellants are distinguishable on the facts of the case involved in the present case and rather they support the case of the Revenue as the activities of carrying, depositing, selling, etc., are covered under Section 112 of the Customs Art and they are as such punishable. He relied upon the decision in the case of Sachidhananda Banerjee reported in, 1984 ECR page 518 (SC) and, 1999 (110) ELT 292 and contended that to aid and to abet is very well punishable under the provisions of Customs Act.

(3.) AFTER hearing the rival submissions, perusal of the records and the case laws cited by both the parties, we find that no role has been assigned to Shri Rajiv Gupta and his involvement is not proved and interests of justice would be met if the amount of penalty is reduced to Rs. 25000/ - in the case of Ajay Gupta and the amount of penalty imposed on Shri Rajiv Gupta is set aside. We order accordingly.