| SooperKanoon Citation | sooperkanoon.com/2543 |
| Court | Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai |
| Decided On | Feb-10-1986 |
| Reported in | (1987)(13)LC806Tri(Mum.)bai |
| Appellant | Andrew Pereira |
| Respondent | Collector of Customs |
2. The appeal was argued by Miss S.D. Kolhe, Advocate who explained" that the appellant was working as a fireman with the BPT and on the day in question viz. 19-3-1961 he was posted at Peerpav area. The Customs made a seizure of Rs. 18,300/- and 400 U.S. Dollars from him on that day and also seized some foreign goods from the crew member Shri Sherzada on the ship M.T. Gambhira. The appellant was prosecuted for the offence of attempted export of Indian and foreign currency. But he was acquitted from the charge of attempted export by the Magistrate.
Miss Kolhe drew our attention to para 9 in particular of the Magistrate's order. Relying on the Magistrate's finding she submitted that the act of the appellant did not amount to an attempted export as he did not have any such intention. The Magistrate had further observed that even if the inculpatory statement of the appellant was to be accepted that he was to give the currency to Shri Sherzada it could not amount to an attempt to export as Shri Sherzada could have disposed of the currency in India. While Shri Sherzada was employed on the foreign ship and the ship was to sail on the next day i.e. 20-3-1981 the appellant could not know what Shri Sherzada would have done with the money. Miss Kolhe read out the appellant's statement. She further argued that the appellant did not part with the money and hence there was no attempted export of the same. She further stated that the advocate of the appellant had waived the issue of the show cause notice before the adjudicating officer, but except for his own statement there was no evidence that the appellant was going on board to meet Shri Sherzada for handing over the money to him. The Department had not been able to trace Shri Malbari who was the alleged owner of the money.
Therefore, even if the appellant's statements were to be accepted, it would not amount to an attempted export of the Indian and foreign currency. Even though, in his original statement the appellant had stated that one Ramesh Malbari had given the money to him for being handed over to the crew member Shri Sherzada, subsequently the appellant claimed the ownership of the currency. The Department had not put-forth any evidence to show that the appellant was going on board on the ship for purchasing anything. On the same day i.e. 19-3-1981 another fireman of BPT by the name of Shri Ebrahim N. Wangade was also apprehended by the Customs with Rs. 800/- in Indian currency and his statement was recorded which did not connect the appellant Shri Pereira with any other activity. While Shri Ibrahim was apprehended after he was coming down from the ship, Shri Pereira was apprehended before he could board the vessel. Therefore, there was no attempt of export. The advocate also read Gut the statement of the crew member Shri Sherzada.
She contended that the money in question was given to the appellant by a friend for the purchase of the car on the next day and since the friend had to leave Bombay urgently on account of his mother's illness at his native place, the money remained with the appellant. The advocate submitted that there was no offence for possessing Indian currency in India and she requested that the penalty levied on the appellant be set aside. She further added that the appellant was proceeded under Foreign Exchange Regulation Act but he was exonerated by the Chairman of the FERA Appellate Board. In answer to the query from the Bench, the Advocate stated that there was no objection to the confiscation of the Indian and foreign currency as the appellant was not the owner of the same and that, in that event, she would confine the appeal against the penalty levied on the appellant only if the request was acceptable to the Bench.
3. The learned Sr. Deptl. Representative Shri S. Senthivel argued in reply that the proceedings before the Magistrate and the department were two separate entities. The Magistrate's findings would not apply in toto to the departmental proceedings. He cited the judgment of the Bombay High Court in CR. W.P. 1004/85 in the case of Maneklal Pokhraj Jain and Ors. v. Collector of Customs (Prev.) dated 12-5-1985 in support of his argument. Shri Senthivel stated that the panchnama of the seizure of the recovery of the Indian and foreign currency from Shri Pereira and Shri Ibrahim N. Wangada had been made and he read out the relevant portion relating to the panchnama of the seizure of the Indian and foreign currency from the appellant. Shri Senthivel contended that the appellant was found at the gangway leading to the vessel and this would show that he was about to board the vessel. There was thus a nexus between the amount of currencies seized and the value of un-declared contraband goods with the crew member Shri Sherzada. As per the statement of the appellant, the money was intended for the purchase of the goods belonging to Shri Sherzada. Since the vessel was to sail the next morning to the Persian Gulf, Shri Senthivel contended that the appellant had attempted to export the currency in question. He read out Section 113(a) of the Customs Act and also referred to the definition of goods in Section 2 (22) of the Customs Act to contend that "goods included currency". Shri Senthivel also referred to Shri Pereira's admission that he knew Shri Malbari and hence the attempted export of currency was established. The amount of penalty of Rs. 2,000/-was quite legal and correct. Shri Senthivel, further observed that the initial statement of Shri Pereira was voluntary and hence the same was acceptable. He also referred to the Calcutta High Court Judgment AIR 1980 Calcutta p. 188 to show that the exported goods were liable to confiscation at the stage of attempt. In conclusion Shri Senthivel prayed that the appeal be rejected.
4. Miss Kolhe stated in reply that the S.D.R. had gone too far in his arguments to uphold the orders of the lower authorities. Even initially, it could not be said that the appellant made an attempt to export the currency. Shri Sherzada did not say that he wanted to export the currency even though he was a Pakistani national on a Pakistani ship. There was also no statement of the appellant that he wanted to export the currency. The Magistrate also held that there was no attempt to export the currency. There could not be any charge for the possession of Indian currency in India. The judgment referred to by the S.D.R. was not relevant and the Customs did not appeal against the Magistrate's order discharging the appellant. In view of these reasons, Miss Kolhe prayed that the appeal be allowed.
5. We have examined the submissions on both sides. Taking the legal submission of the appellant's advocate first that the Magistrate's order should be given full credence and acceptance by us, we find that the S.D.R.'s arguments has covered this contention. The proceedings before the Magistrate and the departmental authority are quite separate, one following the Evidence Act while the other not requiring to do so. The various authorities have laid down that findings in criminal cases are not binding in civil matters. Besides, the Magistrate has acquitted the appellant by not accepting the confessional statement of the appellant as this was without any corro-boration. On the other hand, as contended by the S.D.R., the initial statement of the appellant was voluntary and there is no reason to dis-believe the same. As per the statement, Shri Andrew Pereira was to receive Rs. 400/ in return for handing over the Indian and foreign currency to Shri Sherzada on board the ship. He was failed in his attempt to take the currency on board the ship. While the Magistrate held that there was no attempted export as Shri Sherzada could have disposed of the currency in India itself, it is difficult to speculate on what could have been the outcome if the currency had been taken on board and given to Shri Sherzada. Shri Pereira was a fireman of the BPT and he was well familiar with the shipping in port. He would have known that the ship would sail next morning to a place outside India and if he gave the money to the crew member, the money would have most probably been taken away by the crew member on departure. Therefore, in' the normal circumstances, it is legitimate to accept that there was an attempt on the part of the appellant to export the Indian currency through the above mentioned person. The confiscation of the currency under Section 113(d) is, therefore, in order. At this stage, it is not possible to accept the request of the advocate to give up the grounds of appeal relating to the confiscation of the Indian currency. It is seen that all along in the course of the proceedings right up to 'the stage of Revision Petition before the Government of India the appellant had been agitating the question of confiscation of the currency. Giving up the claim in this behalf of the ground that the currency did not belong to the appellant would lead the appellant to escape the consequences of his misdemeanour in the attempted export. In such an event all the carriers of contraband goods can shed responsibility on the ground that the goods do not belong to them. This would be a dangerous situation and would certainly hit the anti-smuggling activity of the Department. We, therefore, see that there is no substance in the advocate's request to relieve the appellant from the claim relating to the currency. Since Shri Pereira was involved in the attempted export, the penalty of Rs, 2,000/- on Shri Pereira is quite justified. In the aforesaid circumstances, we find that the orders of the Asstt.
Collector and Appellate Collector are quite legal and fair. We confirm the same and reject the appeal.
6. I have had the advantage of going through the order of my brother Shri Dilipsinhji. I respectfully disagree with the view taken by Shri Dilipsinhji.
7. The undisputed facts are that on 19-3-1981 at about 11 P.M. the Customs Rummaging Officers of Harbour Fatrol duty noticed some suspicious movements near the vessel M.T. Gambhira which had earlier arrived from Gulf Port and was berthed at Peerpav. Immediately, they approached the vessel and found certain people coming down the gangway.
They interrogated a person coming down and he gave his name as Ebrahim N. Wangade working in Bombay Port Trust Fire Brigade. He was found in possession of Rs. 800/-. Thereafter, the Customs officers stopped the present appellant Shri Andrew Pereira trying to board the ship. On questioning, the appellant told the Customs officer that he was an employee of the B.P.T. Fire Brigade and was trying to board the Vessel Gambhira. He also told the customs officers that he was carrying Indian currency and U.S. dollars on his person and that the currencies were to be handed over to a crew Member by name Sherzada. The customs officers detained the appellant as well as Shri Wangade in one of the cabins of the ship. On the next day, i.e. 20-3-81 the person of the appellant was searched and was found in possession of Rs. 18,300/- in Indian Currency and US 400. His statement was recorded under Section 108 of the Customs Act. Among other things, the appellant stated that the Indian currency and the US dollars were given to him by a person named Ramesh Malbari who was staying somewhere near Vashinaka in Chembur. He, however, stated that he did not know the residential address. He further stated that he had been asked to hand over the currencies to a crew member on board the ship M.T. Gambhira. He also knew the name of the crew member as Mr. Shefzada. It was also stated by the appellant that he was to get a commission of Rs. 400/- from Shri Ramesh Malbari for delivering the currencies to Mr. Sherzada. The appellant also stated in his statement that his job was only to hand over the money and he was not going to the vessel to buy any contraband goods, nor Mr Ramesh Malbari had asked him to buy anything on board.
8. The statement of Shri Sherzada was also recorded under Section 108 on 20-3-81. Among other things, Shri Sherzada stated that the customs officers came to his cabin with the appellant and searched his possession. They found him carrying 6 sony cassette recorders which were in excess of his personal property declaration. The officers seized the said 6 recorders under a panchnama in the presence of two independent panchas. The cassette recorders were valued at Rs. 16,200/- at local market. He also stated that he had brought these goods to sell in Bombay if possible and to make little profit to enhance his income.
When questioned about the money found with the appellant, Shri Sherzada stated : "I came to know that Andrew was carrying some 'money on board the vessel only when he was apprehended by customs and searched. Further I never had any dealing with Andrew or anybody. I also do not know why he brought the money (I do not know the amount) on board whom he was supposed to handover the money." 9. It appears Shri Wankhade, Shri Sherzada' and the appellant waived the show cause notice. It further appears that two separate adjudication were held. In the adjudication held against Sherzada a personal penalty of Rs. 2,000/- was imposed and 6 radio cassettes were ordered to be confiscated. In the other adjudication proceedings, the Asstt. Collector held that Rs. 800/- Indian currency found in possession of Shri Wangade was not liable to be confiscated, since he did not commit any offence. The Assistant Collector, however, ordered confiscation of the Indian currency and U.S. dollars seized from the possession of the appellant and he also imposed a personal penalty of Rs. 2,000/-. On appeal, the Appellate Collector confirmed the order of the Asstt. Collector. Feeling aggrieved the appellant preferred a revision application to the Government of India which stand transferred to the Tribunal for being heard as an appeal.
10. The appellant was also prosecuted for the offence under Section 135 A (ii) of the Customs Act read with Section 13 (2) of the Foreign Exchange Regulations Act. The Additional Chief Metropolitan Magistrate by his order dated 17-10-81 acquitted the accused holding him not guilty of the charges.
11. During the hearing of this appeal, Miss S.D. Kolhe, appellant's learned Advocate contended that even before the order of adjudication was passed, the appellant was acquitted by a competent criminal court on the same facts and therefore, the order of confiscation and penalty imposed should be set aside since the finding of the ciminal court is binding on the adjudicating authority. Miss Kolhe further urged that except the statement of the appellant there was no other evidence to establish that there was attempted export of Indian and foreign currency by the appellant. Miss Kolhe contended that even if the statement of the appellant is accepted as true, the currency seized from him cannot be confiscated or penalty cannot be levied on him since he committed no offence. She urged that possessing of Indian currency or U.S. dollars 400 does not violate any law. Section 113 (d) under which the Asstt. Collector has passed the order has no application.
Miss Kolhe contended that according to the statement of the appellant he was apprehended at the jetty. According to the officers of the customs who accosted him the appellant was found boarding the ship and therefore the allegation contained in the panchnama that the ppellant was inside the ship is toally erroneous. Miss Kolhe further urged that the appellant did not part with the currency. He had not boarded the ship. Therefore it cannot be said that there was any attempted export of the Indian or foreign currency. She therefore prayed that the order 'of confiscation as well as the levy of penalty may be set aside.
12. When questioned by the Bench as to how she could contend regarding setting aside the confiscation of the currencxies when the currencies did not belong to the appellant but belong to one Ramesh Malabari, according to the statement of the appellant, Miss Kolhe stated that if the Bench were to take a view that the currencies belonged to Malabari, she would confine her appeal only regarding the penalty levied.
13. It was also submitted by Miss Kolhe that proceedings were initiated against the appellant under FERA but he was exonerated by the FERA appellate Board.
14. Shri Senthivel, the learned S.D.R. contended that the proceedings before the Magistrate and proceedings before the adjudicating authority are two independent proceedings. Finding of the Magistrate is not binding on the adjudicating authority. In support of his contention Shri Senthivel relied on the judgment of the Bombay High Court in Criminal Writ Petition 1004/81 in the case of Maneklal and Ors. v.Collector of Customs (Preventive) Bombay decided on 12-5-85. Shri Senthivel relied on the contents of the panchnama and stated that the appellant was found in possession of the foreign currency inside the vessel. Shri Senthivel also urged that the appellant had admitted that he was to hand over the currency to Sherzada, a crew member of the vessel and that crew member was a Pakistani National and the vessel was to sail on the next day. Therefore, the appellant did attempt to export currencies. As such the orders passed by the Assistant Collector and confirmed by the Appellate Collector are correct.
15. I have carefully considered the submissions made on both sides and perused the records of the case. The statement made by the appellant under Section 108 is admissible in evidence. It is therefore relevant for determination of the question of law. As has been rightly contended by Miss Kolhe excepting the statement of the appellant there was no other evidence against the appellant. Even the crew member Sherzada did not state anything against the appellant. The appellant was arrested on the night of 19-3-81 and his statement under Section 108 was recorded on the next day i.e. 20-3-81. His version was that while he was in the jetty he was questioned by. the customs officers. He also told in his statement that he was carrying Indian' currency and foreign currency given to him by one Shri Ramesh Malbari for being handed over to a crew member Shri Sherzada. Admittedly, he did not board the ship. He did not part with the currency. Before he could board or part with the currency he was apprehended by the customs officers. If the statement of the appellant is to be believed he was only a carrier of the currency. He did not know the purpose for which he was to hand over the currency to a crew member. He however, made it clear that he was not boarding the ship to purchase any contraband nor was he directed by Shri Ramesh Malbari to purchase any contraband on board the vessel.
16. The question that arises for consideration is whether it could be said that there was attempted export of currency by the appellants. It is no offence to possess Indian currency and U.S. dollars of 400/-.
Admittedly the appellant was not to sail in the vessel Ghambira. As stated earlier xcepting the appellant's version there is no other evidence. The version of the appellant was to hand over the currency to crew member at the instance of one Ramesh Malbari. If the appellant had handed over the currency probably Sherzada would have exported the currency out of India. The export or attempted export would have been by Shri Sherzada and not by the appellant. At best it could be said that the appellant would have facilitated Sherzada in the attempted export of the currencies if he had handed over the currency to Shri Sherzada. The act of the appellant falls short of the attempted export of the currencies by him. At best it could be said that there was preparation for attempted export of the currencies and not attempted export of the currencies. Significantly Shri Shrezada was not proceeded with for attempted export of Indian Currency. If the statement of the appellant was to be believed the person to export would be Sherzada but there was no such allegation against Sherzada. Shri Sherzada was penalised for possession of contraband cassette recorders.
17. It was no doubt true that the customs were not able to trace Ramesh Malbari. Therefore inference may be possible that that-part of the statement of the appellant that the money was given to him by Ramesh Malbari may not be true statement. In that event money would be that of the appellant himself. It is not clear why the appellant should have given the money to Sherzada. It is not the case of the deptt. that Sherzada was to take the money out of India for getting contraband during the next voyage or for being handed over to any of the relatives or friends of the appellant. The only other probability for the appellant to take money on Board would be to purchase contraband articles from Sherzada or other crew members. If the appellant thought of purchasing contraband goods with the Indian currency the offence that would have been committed would not be attempted export of foreign currency but possessing of contraband goods. In that event there would be no offence under Section 113 or Section 114 of the Customs Act. It may be stated at this stage that the proceedings were initiated jointly against the appellant and Shri Wankhade. Admittedly Wankhade had gone on board the vessel for purchase of contraband goods and he had Rs. 800/-. He, however, did not make any purchase and while coming down from the vessel he was apprehended. The learned Asstt. Collector rightly held that there was no offence committed by Shri Wankhade. He therefore directed release of Rs. 800/- seized from his person. It is not clear how the act of the appellant would be different from that of Shri Wankhade.
18. The contention of Shri Senthivel that the panchnama disclosed that the appellant was found inside the ship and his presence inside the ship coupled with the statement that he was to hand over the currencies to a foreign national established the offence of attempted export, cannot be accepted. I have looked into the original records. The customs officer who had accosted the appellant clearly stated that Shri Wankhade was coming down the ship and the appellant was about to board the ship. The statement of the appellant was that he was apprehended while he was in the jetty. According to the customs officer after apprehension the appellant and Wankhade were taken inside the cabin of the ship. Panchas were called on the next day and therefore in the panchnama if it was stated that the appellants were found inside the ship that fact would be correct because when the panchas came the appellant was inside the ship because he was taken inside for safe custody during the previous night.
19. It is pertinent to state that no show cause notice was issued to the appellant. It was stated that the appellant had waived show cause otice. Under Section 124 of the Customs Act, no confiscation can be ordered or penalty levied unless the person is given notice in writing informing of the grounds on which it is proposed to confiscate the goods or to impose the penalty. The said section provides that the notice can be oral, if requested by the person concerned. In the adjudication order it was stated that the appellant had waived the show cause notice. What could be waived is only written notice. The appellant ought to have been told about the allegations and should have been given an opportunity of making his representation.in writing and should have been given a reasonable opportunity of being heard in the matter. The order in original does not snow that the allegations were explained to the appellants. The order therefore suffers from serious infirmity.
20. The confiscation was ordered under Section 113 (d) of the Customs Act. The penalty was imposed under Section 114. Section 113 (d) reads : "any goods attempted to be exported or' brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force." As has been stated earlier possession of Indian currency or U.S. $400 by itself would not violate either the Customs Act or FERA Act.
Therefore, bringing the currency within the limits of any Customs area by itself would not amount to an offence in order to attract the provisions of Section 113 (d). The department has to establish that there was an attempted export by the appellant of the Indian currency.
They had not let in any evidence. As stated earlier the department solely relied on the statement of the appellant. If the department wishes to rely upon the statement of the appellant it should rely on the whole statement and not part of it, unless the part of the statement on which reliance is not placed is proved to be false. If the statement of the appellant was accepted it would only shows that he was a carrier of the currency and he was to hand over the currency to a crew member of the foreign going ship. It cannot be said that there was an attempted export on his part of the currencies. At best his action amounted to preparation. That is no offence. As observed earlier even if we were to disbelieve that the currency belonged to Ramesh Malbari the inculpatory statement made by the appellant would be hardly sufficient to hold that he was attempting to export currency.
Therefore, no order of confiscation could have been made in respect of the currency found in the possession of the appellant. If confiscation of the currency was not possible, no penalty could have been levied on the appellant under Section 114.
21. Having regard to my above findings, I allow this appeal, set aside the orders passed by the Asstt. Collector and the Appellate Collector.
The appellant be granted consequential ef.
22. There is a difference of opinion between two Members as to whether there was an attempted export by the appellant. Therefore the matter is referred to the President for referring the following question to one or more other Member of the Appellate Tribunal. The question is "whether on the facts and in the circumstances of the case, could it be said that the appellant attempted to export Indian currency of Rs. 18,300/- and U.S. dollars 400? 23. As there was difference of opinion between the two learned Members who comprised the Bench, the President assigned the matter to me for disposal under Section 129-C(5) of the Customs Act, 1962.
24. After due notice and making available copies of the orders already recorded by my learned brothers, I have heard both sides at Bombay today. Miss S.D. Kolhe appeared for the appellants and Shri S.Senthivel for the department. Both sides reiterated their stand. Miss Kolhe stressed the point that the appellant was not on the ship nor was he caught boarding the ship. He was at the most a carrier for delivering the currency to the foreigner, Shri Sherzada in India and it cannot be said with certainty that Shri Sherzada would have exported the currency when the ship sailed the next day, or he would have disposed of the currency in India itself.
25. I have considered the matter. As I see it, Section 113 (d) is in two parts - 'attempted to be exported" and "brought within the limits of any customs area for the purpose of being exported".
It could be debatable whether the appellant had attempted to export the goods himself. In my view, he does not squarely come within the mischief of the first part of Section 113(d). As to whether he comes within the ambit of the second part, the entire circumstances of the case have to be considered. The appellant was apprehended quite late at night (11 p.m.) at the port Jetty near the foreign ship. Though he was a fireman in the service of the Port Trust, it was not within the call of his duty to be at that place at that hour. His stated purpose was to board the ship and to hand over the Indian and foreign currency to the foreign crew, Shri Sherzada. It was also within his knowledge that the ship was to sail for a foreign port the very next day. All these circumstances considered together leave no doubt in my mind that the appellant was well aware that the currencies which he was carrying and which he was to deliver to the foreigner were for the purpose of being taken out of India clandestinely. His role was not an innocent one of delivering some currency to somsone on the Indian soil. He was to get the commission of Rs. 400/- for delivering the currency. These circumstances attracted the second part of Section 113 (d) of "brought within the limits of any customs area for the purpose of being exported", contrary to any prohibition in force. The section equates this also to attempted export. The appellant had the certain knowledge that he was a part of the clandestine export operation, and for which he was to get a handsome commission. In the circumstances, I agree with my learned brother, Shri Dilipsinhji.
26. I uphold the penalty imposed on the appellant and reject the appeal.
27. Final Order: The point of difference in this appeal was referred by the President in terms of Section 129-C(5) to the third Member and that Member has since recorded his findings.
28. As per Section 129-C(5), the appeal has to be disposed of in terms of the majority opinion. Accordingly, we find that the order of the Asstt. Collector and the Appellate Collector are quite legal and fair.
We confirm the same and reject the apeal.