P.M. YUSUF Vs. COMMISSIONER OF CUSTOMS, COCHIN

JUDGEMENT

(1.) THESE appeals arise from common Order -in -Original No. 1/99, dated 19 -7 -1999 by which the Commissioner of Central Excise and Customs, Cochin has ordered for absolute confiscation of foreign currencies equal to Rs. 45,11,588.75 under sub -section (d), (e) and (h) of Section 113 of Customs Act and has also imposed penalty of Rs. 1 lakh each on each of the appellants under Section 114(i) of Customs Act. The appellants have pre -deposited the amounts in terms of the stay order. They have not appeared for hearing and have prayed for the case to be decided on merits. By stay order No. 50 to 52/2000, dated 13 -1 -2000, the appellants prayer for waiver was not accepted on detailed examination of the facts of the case and the stay application was rejected. The appellants have complied with the terms of the order. In terms of the impugned order the facts are that the appellants had filed shipping bills assigned with Sl. No. 14015, dated 15 -7 -1995 of Trivandrum Air Cargo Complex for clearance on 16 -7 -1995 claiming the item for export to be 51 packages of fruits, vegetables and duck eggs totally weighing 500 Kgs. However, on detailed examination of the package it was found that the appellants had concealed foreign currencies of various denominations of various countries as stated in the order in this consignment. The statement of the Managing Partner of M/s. Fathima Enterprises, Shri P.M. Yusuf was recorded in the presence of witnesses. Shri P.M. Yusuf identified the items and the foreign currencies seized from the packets. The same was seized under Mahazar. Shri P.M. Yusuf who consigned the shipping bills on behalf of M/s. Fathima Enterprises was also issued with show cause notice. He admitted about the concealment of foreign currencies and also implicated Shri Ashraf, his partner in his firm. Shri Ashraf has not cross -examined Shri P.M. Yusuf in the matter despite opportunity given to him. There is a clear admission by Shri Ashraf that he was a partner of M/s. Fathima Enterprises. In view of the enormous evidence collected by the investigation agencies proceedings were initiated and in terms of the admissions made by the appellants, the Commissioner after granting full opportunity to the appellants, ordered for absolute confiscation of currencies and imposing penalty of Rs. 1 lakh on each of the appellants.

(2.) WE have perused the impugned order and have also gone through the grounds of appeal. We are of the considered opinion that the appellants are involved in the attempt to export foreign currencies of various countries in different denominations, concealing the same in boxes containing fruits, vegetables and duck eggs. The appellants have in their statements admitted about the attempt made by them to export the same by concealing it in the 48 packages of vegetables and 3 cardboard boxes containing eggs. Further statements were recorded from Shri Jayakumar who supplied vegetables for exporters and he had also given the details as to how, Shri P.M. Yusuf, the owner of the foreign currencies had concealed the same. The statement of Shri T. Michael Sam Raj was also recorded who also admitted about being a driver of tempo van bearing No. KL 01 B 4705 who has transported the three cardboard boxes containing eggs and fruits and was working for Shri P.M. Yusuf and on his instructions carried out the entire activity. Statements of Shri Sudevan, Receptionist of Priya Tourist Home also implicated Shri P.M. Yusuf. There was a statement of Shri T. Narayanan, Executive of M/s. East West Travel and Trade Links Ltd. who also implicated Shri Yusuf and Shri Ashraf in the matter. In view of this enormous evidence in the form of these statements and the inculpatory documents seized from the residence of Shri Ashraf, the Commissioner has given a categorical finding about the concealment of the foreign currencies against the provisions of Foreign Exchange Regulation Act and the same becoming absolutely confiscable. In view of the enormous evidence and inculpatory statements about the involvement of the appellants in attempting to smuggle out the foreign currencies, the seized foreign currencies are absolutely confiscable and that they are liable for penalties. We find that the appellants are involved in the case and the value of the foreign currencies is more than Rs. 45.11 lakhs and the penalty imposed is only Rs. 1 lakh on each of them, which is very minimal and cannot be faulted. The only plea in their submission is for reduction of penalty, which on our consideration find that the penalty imposed being very minimal compared to the value of the seized currencies, therefore, it does not call for any reduction. There is no merit in these appeals and the same are rejected.