Ghanshyam a Rohra Vs. Commissioner of Customs - Court Judgment

Excerpt:
1. the appeal is against the order of the commissioner imposing on the appellant a penalty of rs.2.50 lakhs under section 112 (a) of the act.2. the facts which are not in dispute are these. the appellant travelled from delhi to bombay on 31.7.1995 by flight. ic184 of indian airlines. when the flight landed at bombay, officers of the directorate of revenue intelligence searched him and found that he was carrying a small screw driver, circuit tester and 's' shape metallic part in the pocket of his trouser. the officers seized these. the panchanama relating to the seizure also mentions that the appellant was carrying assorted foreign currency equivalent to rs 15.12 lakhs approx. the recovery of the foreign currency from the appellant is however questioned by him.3. the department's case is that when the appellant went to singapore on 22.7.1995, he met abdul karim. that man told him that he would give the appellant instructions subsequently so that he could remove foreign currency concealed in the toilet in the business class section of the aircraft. after the appellant returned to india, karim phoned the appellant on 30.7.1995 and asked him to fly to delhi on the morning of 30.7.1995 and take specific flight back to bombay and during that flight recover the currency.4. on these facts the commissioner has found the foreign currency liable to confiscation and the appellant liable to penalty. the confiscation of the currency is not questioned before me. the only issue for consideration is the penalty imposed on the appellant.5. the counsel for the appellant points out and, in my view rightly, that there is nothing to show that the appellant smuggled the currency to the country. on the department's own case, as he says, the appellant returned from singapore on 27.7.1995. the department does not allege that he brought in any currency. the currency was therefore imported without any act on the part of the appellant. the further contention the counsel for the appellant makes is that the currency itself is not liable to confiscation. there is no evidence that the currency was smuggled into india. import of currency is not prohibited. it is freely importable, although a declaration is required to be made before the customs authority if the currency exceeds us$ 10,000 or its equivalent.that however does not render the currency liable to confiscation. no penalty is hence imposable under section 112(a) of the act.6. the departmental representative contends that since confiscation of the currency, which he says was found from the appellant, is not challenged, clause (a) of section 112 would apply.7. i am completely unable to accept this argument. even assuming that the currency was found the possession of the appellant, i do not see how any penalty could be imposed on him under clause (a) of section 112 of the act. there is not the slightest allegation that the appellant imported the currency or did anything which facilitated such importation. assuming the worst against him, his role commenced when he boarded the flight from delhi. it can hardly be said that facilitating carriage of the currency from delhi to bombay abetsits importation.therefore, the imposition of penalty which is specifically under clause (a) of section 112 cannot be justified.8. i have accordingly not dealt with the various arguments that the counsel for the appellant touched upon in his attempt to establish that the case against the appellant was false and that he was innocent of the act attributed to him. while the order of confiscation is confirmed, the penalty imposed on the appellant is set aside.

Judgment:
1. The appeal is against the order of the Commissioner imposing on the appellant a penalty of Rs.2.50 lakhs under Section 112 (a) of the Act.

2. The facts which are not in dispute are these. The appellant travelled from Delhi to Bombay on 31.7.1995 by flight. IC184 of Indian Airlines. When the flight landed at Bombay, officers of the Directorate of Revenue Intelligence searched him and found that he was carrying a small screw driver, circuit tester and 'S' shape metallic part in the pocket of his trouser. The officers seized these. The panchanama relating to the seizure also mentions that the appellant was carrying assorted foreign currency equivalent to Rs 15.12 lakhs approx. The recovery of the foreign currency from the appellant is however questioned by him.

3. The department's case is that when the appellant went to Singapore on 22.7.1995, he met Abdul karim. That man told him that he would give the appellant instructions subsequently so that he could remove foreign currency concealed in the toilet in the business class section of the aircraft. After the appellant returned to India, Karim phoned the appellant on 30.7.1995 and asked him to fly to Delhi on the morning of 30.7.1995 and take specific flight back to Bombay and during that flight recover the currency.

4. On these facts the Commissioner has found the foreign currency liable to confiscation and the appellant liable to penalty. The confiscation of the currency is not questioned before me. The only issue for consideration is the penalty imposed on the appellant.

5. The counsel for the appellant points out and, in my view rightly, that there is nothing to show that the appellant smuggled the currency to the country. On the department's own case, as he says, the appellant returned from Singapore on 27.7.1995. The department does not allege that he brought in any currency. The currency was therefore imported without any act on the part of the appellant. The further contention the counsel for the appellant makes is that the currency itself is not liable to confiscation. There is no evidence that the currency was smuggled into India. Import of currency is not prohibited. It is freely importable, although a declaration is required to be made before the Customs authority if the currency exceeds US$ 10,000 or its equivalent.

That however does not render the currency liable to confiscation. No penalty is hence imposable under Section 112(a) of the Act.

6. The departmental representative contends that since confiscation of the currency, which he says was found from the appellant, is not challenged, clause (a) of Section 112 would apply.

7. I am completely unable to accept this argument. Even assuming that the currency was found the possession of the appellant, I do not see how any penalty could be imposed on him under clause (a) of Section 112 of the Act. There is not the slightest allegation that the appellant imported the currency or did anything which facilitated such importation. Assuming the worst against him, his role commenced when he boarded the flight from Delhi. It can hardly be said that facilitating carriage of the currency from Delhi to Bombay abetsits importation.

Therefore, the imposition of penalty which is specifically under clause (a) of Section 112 cannot be justified.

8. I have accordingly not dealt with the various arguments that the counsel for the appellant touched upon in his attempt to establish that the case against the appellant was false and that he was innocent of the act attributed to him. While the order of confiscation is confirmed, the penalty imposed on the appellant is set aside.