AMIRALI ALIDIN KUTCHI Vs. COMMISSIONER OF CUSTOMS, HYDERABAD

JUDGEMENT

(1.) THIS is a second appeal filed by Shri Amirali Alidin Kutchi against imposition of penalty of Rs. 2 lakhs under Order -in -Original No. 10/97 -Cus., dated 10 -11 -1997 by the Additional Commissioner of Customs and Central Excise, Hyderabad -II. The first appeal was rejected by the Commissioner of Customs and Central Excise, Hyderabad under Order -in -Appeal No. 19/2000 (H -II) Cus., dated 24 -3 -2000.

(2.) THE appellant had reached Hyderabad from Bombay by Flight No. IC -117 on 13 -5 -96. Shortly thereafter, he returned to Hyderabad Airport to board flight IC -591 from Hyderabad to Sharjah. In fact, the very same aircraft which brought the appellant by Flight No. IC -117 from Bombay to Hyderabad was flying as IC -591 from Hyderabad to Sharjah, after a short break at Hyderabad. Based on intelligence about smuggling of foreign currency, the Customs Officers checked the appellant. They found on him a screw driver handle and some pages of Gujarati newspaper Mumbai Samachar Sapthahika dated 12 -5 -96. The officers also rummaged the aircraft. During the rummaging they recovered assorted foreign currencies which had been concealed in the overhead panel of the toilet of the aircraft. The currencies consisted of 6226 US Dollars, 900 Deutche Marks and 600 Swiss France. These currency notes had been wrapped in the remaining pages of Mumbai Samachar Sapthahika. Upon questioning, the appellant denied any connection to the currency. However, proceedings were initiated against him alleging that he had concealed the currency for smuggling it abroad. In the adjudication proceedings, the charge was upheld. The evidence that weighed with the adjudicating authority was that the appellant was the only passenger from Bombay who had been booked from Bombay via Hyderabad for Sharjah, he was taking a more expensive and longer route for going to Sharjah than was necessary and the concealed currency was wrapped in the remaining pages of Mumbai Samachar Sapthahika newspaper (the other pages have been found on the appellant). The unreliable nature of the appellants explanation for his taking a more expensive and circuitous route, that he flew this extra distance to earn mileage points under frequent flyer scheme, and the testimony of the flight purser that during the journey from Bombay to Hyderabad, the appellant had spent abnormally long time in the toilet were also taken into account in adjudication.

(3.) THE appellants submission is that the case against him is based on assumption and presumption inasmuch as there was no forensic evidence linking the handle of the screw driver to the opening of the aircraft toilet panel, no finger prints of his being found on the panel, no mention of page number of the newspaper in the Mahasar (relating to the recovery of the foreign currency) and his own statement on the date of seizure that he had no connection with the currency.