Manjit Sethi Vs. Collector of Customs

1. Factual Background. - On 9-2-1991, a group of eight Indian Nationals arrived at Land Customs Station, Attari Road from Iraq/Kuwait and Shri Narinder Singh Sethi was leader of this group. He was holding Indian P.P. No. C-179312. They arrived in 8 motor cars, one of them named Ashok Kumar holder of Indian P.P. No. B-041216 also arrived along with this group in Mercedes car Model 1984 Registration No. 15393. After completion of health and Immigration formalities, he presented his baggage and the car for Customs clearance. The Customs Officer on duty asked him to declare the contents of his baggage and the goods imported/brought in the car No. 15393. He orally declared that he had items of his personal use, one colour T.V. AIWA and two-in-one cassette player. The baggage officer again asked him to declare if he had any contraband goods like gold, silver, drugs etc., concealed in his baggage, on his person or in the car brought by him to which he replied in negative. On examination of his baggage, the contents were found to be as per his oral declaration. Since he alongwith other members of his group arrived at LCS Attari Road, late towards the close of the day, the examination of his car could not be done on 9-2-1991. On 19-2-1991 on a suspicion that the car is brought by Shri Ashok Kumar on forged documents, he was interrogated by the Customs staff and the rummaging of the car was undertaken in his presence. As a result of rummaging of the car with the help of motor mechanics one jewellery box (purse type) made of gold was found concealed in a cavity behind the dash-board which was recovered by the Customs staff in the presence of Shri Ashok Kumar. Thereafter, on intensive interrogation of Shri Ashok Kumar by the Customs staff he disclosed that the car bearing Registration No.15393 of Kuwait actually belonged to Shri Narinder Singh Sethi (Appellant) who was the leader of the group consisting of 8 cars driven by 8 persons including himself and that he had brought this car to India on behalf of said Shri Narinder Singh Sethi on a consideration of Rs.l,50,000/-. Shri Ashok Kumar further disclosed that the covered gold jewellery box also belonged to said Narinder Singh Sethi. The jewellery box of gold was got weighed and tested from goldsmith who certified its weight as 735 gms, purity 20 cts. and value as Rs. 2,02,860/-. Since Shri Ashok Kumar failed to produce any evidence, documentary or otherwise, for the legal import/possession/acquisition of the said jewellery box valued at Rs. 2,02,860/- and the Mercedes car bearing Registration No. 15393 valued at Rs. 8,00,000/-, the same were seized under Section 110 of the Customs Act, 1962 on the reasonable belief that the same are liable for confiscation under Section 111 & 115 of the Act. Shri Ashok Kumar in his statement dated 11-2-1991 before Customs while admitting the recovery of jewellery box made of gold and the car, said that he was working as a driver in Kuwait in a Company named Al-Safat Co. but did not own any vehicle there, but after the break of war in Kuwait, one Harbans Singh Kohli, who was working in the same Company introduced him to one Narinder Singh Sethi in the 1st week of September, 1990, and it was agreed with Narinder Singh Sethi to take his car to India on a consideration of Rs.1,50,000/-, that the recovered jewellery box made of gold was also concealed by Shri Narinder Singh under the dash board of car, that Narinder Singh Sethi further directed him to be careful as the Jewellery box was very costly and instructed him not to disclose anybody about it, that the above said Harbans Singh Kohli [sic] managed to get the said car transferred in his name in the month of March, 1990 and directed him if anybody asks him he should say that this vehicle was purchased by him in March, 1990 and that he was tempted to do so for a consideration of Rs. 1,50,000/- and Narinder Singh Sethi had assured him of safe passage.

Appellant in his statement on 12-2-1991 denied the allegations made by Shri Ashok Kumar. Show cause notices were issued. Show Cause notice was answered by the appellant in detail denying the charges. After considering the reply and submissions made during the personal hearing and based upon the evidence available on record and based upon the statement of Ashok Kumar, Additional Collector who adjudicated the proceedings held that car under seizure actually belonged to Shri Narinder Singh Sethi who has already imported duty free one mercede car and he cannot claim benefit of duty exemption for second car as provided in the Notification No. 258/90. He has given finding that gold box belonged to Shri Narinder Singh Sethi and the same was not declared before the Customs and was recovered as a result of rummaging and found concealed in the dash board panel of the car under seizure. He has also given weight to the voluntary statement of Shri Ashok Kumar holding that in the voluntary statements given under Section 108 of the Customs Act, Shri Ashok Kumar has made clean breast of the whole episode.

Further he held that appellant's version cannot be relied upon as also in the case of import of another car in his name under Notification No.258/90 and recovery of $1 lakh draft which was not declared by him and, accordingly, he was penalised by the Collector vide Order-in-Original No. 22-Cus./91, dated 27-9-1991. He concluded that Ashok Kumar has brought Car under seizure because he was broke and rendered homeless because of Gulf war, fell victim of temptations offered by the appellant that after handing over car in India, he will give him Rs. 1,50,000/- as a remuneration. He ordered for confiscation of the car as well as gold box observing that party failed to discharge the onus cast upon them under Section 123 of the Customs Act that gold box weighing 735 Gms. valued at Rs. 2,02,860/- is not smuggled one. Accordingly, second car (No. 15393) imported (under seizure) valued at Rs. 8 lacs which was also used for concealing contraband is confiscated absolutely under Section 111 (a) and under Section 115 of the Customs Act for contravening provisions of Customs Act, 1962 and provisions of Import & Export Control Orders and for contravention of Notification No. 258/90.

The gold box weighing 735 gms. valued at Rs. 2,02,860/- was also confiscated under Section lll(d)(e)(p) read with Sections 11 and 77 of the Customs Act. He also imposed personal penalty of Rs. 20,000/- under Section 112(a) and (b) on the appellant and in view of mitigating circumstances, he imposed personal penalty of Rs. 2,000/- on Shri Ashok Kumar under Section 112(a) of the Customs Act.

2. Aggrieved by the said order, the appellant has filed an appeal before the Tribunal questioning the validity of imposition of penalty but not claiming the goods on the ground that he was not involved in the illegal activity as held by the Collector based upon the statement of co-accused. During the pendency of the appeal, appellant Narinder Singh Sethi died on 5-6-1993 and legal heirs of the appellant were brought on record as per Miscellaneous Order No. 25/94, dated 18-1-1994.

3. When the matter had come up for hearing, Mrs. Manjit Sethi, legal heir of the appellant appeared in person and requested that matter may be decided on merits based upon the written submissions filed on 28-4-1994. Accordingly, we have proceeded to pass this order after hearing Shri A.K. Singhal, learned JDR for the respondent.

4. It was stated in the written submissions that late Narinder Singh Sethi was non-resident Indian, doing Automobile Parts' business in Kuwait and Iraq and remitted Foreign Exchange to the country of his earning from aborad to India and he was doing social work for Indians living in Kuwait and Iraq. It was stated therein that car in question did not belong to the appellant nor gold but he was falsely involved based upon the statement of Ashok Kumar since Ashok Kumar was beaten and kept in detention. It was further stated that the statement was retracted by Shri Ashok Kumar and, accordingly, retracted confession of the co-accused without corroboration of evidence cannot be relied upon and imposition of penalty was unjustified.

5. We have considered the matter. We find that Additional Collector has not only relied upon the statement of Ashok Kumar in arriving at the conclusion but discussed the case in detail and on appreciation of evidence he has arrived at the conclusion that appellant was involved and, accordingly, he ordered for confiscation of the goods and imposed penalty. Since appellant has not claimed property we are concerned only with the penalty in question, whether penalty was justified or not. In the facts and circumstances of the case and on going through the order and evidence is corroborated by the statement of co-accused, we do not find any infirmity in the order in imposing penalty. Generally penalty dies with the deceased. It is settled principle that penalty cannot be imposed after death and even if it was imposed but not recovered duirng his life time, the same cannot be recovered from the legal heirs. In other words, penalty cannot be imposed after death of the concerned person and if imposed the same cannot be recovered from the legal heir.

But in the instant case, it is not so. Penalty was not only imposed but it was duly paid by the person when he was alive. Even we doubt very much whether the appeal proceedings can be continued by the legal representatives of the deceased since it was criminal nature of offence and same was ended with the death of the accused, because right of filing an appeal accrues when the rights are affected. Be that as it may [since] neither party nor department has raised that issue before us. In the instant case, taking into cinsideration of the facts and circumstances of the case, we hold that imposition of penalty was justified. Since we are dismissing the appeal the question of refund does not arise. Furthermore, penalty was imposed and recovered during the life time of the appellant Narinder Singh Sethi. In the view, we have taken, the appeal filed by the party is hereby dismissed.