2016 (6) TMI 707 - AT - Customs

Tribunal overturns penalty in Customs Act case due to lack of evidence

The Tribunal set aside the penalty imposed on the appellant under Section 112 (b) of the Customs Act, 1962 for possession of unaccounted foreign currency ... Import of currency and gold - The passengers were intercepted even before they could declare the gold. The allegation against appellant and Sri Neelakanta Rao is that they abetted the importation of gold which is liable for confiscation. Admittedly the gold was not in their possession. The appellant & Sri Neelakanta Rao were found to possess foreign currency. They had explained that the currency was given by one Nusrat. There is no contra evidence placed before us by the department. The Revenue has also not placed any evidence about the person named Nusrat who gave the foreign currency and piece of paper containing names to Sri Neelakanta Rao. This being material to establish the allegation against appellant and his colleague, we have to conclude that department has failed to establish the allegations levelled against the appellant or his colleague Sri Neelakanta Rao. - the penalty imposed on the appellant is therefore unsustainable - Decided in favor of appellants. Issues:Challenge to penalty imposed under Section 112 (b) of the Customs Act, 1962 based on possession of unaccounted foreign currency and involvement in abetting importation of gold.Analysis:The case involved an appeal challenging a penalty imposed on the appellant under Section 112 (b) of the Customs Act, 1962. The appellant, an Assistant Manager at a State Bank branch in an International Airport, was found in possession of unaccounted foreign currency along with a chit bearing names of passengers. The appellant claimed the currency was given by a colleague to pay customs duty for three passengers carrying gold. The Commissioner initially imposed a penalty, which was later reduced on appeal. The key issue was whether the appellant's possession of foreign currency amounted to abetting gold importation, leading to the penalty.Upon review, the Tribunal noted that criminal proceedings against both the appellant and his colleague ended in acquittal. The Commissioner contended that acquittal in criminal proceedings does not nullify departmental proceedings, citing legal precedents. However, the Tribunal emphasized the need for evidence in departmental proceedings to support a different view. Notably, the High Court upheld the acquittal, resulting in concurrent findings. The appellant and his colleague consistently explained that the currency was provided to assist passengers in paying customs duty for gold. The absence of evidence regarding the individual who provided the currency and names was highlighted, leading the Tribunal to conclude that the department failed to establish the allegations against the appellant and his colleague.Ultimately, the Tribunal found the penalty imposed on the appellant unsustainable in light of the evidence presented. With no contradictory evidence from the Revenue and the lack of proof regarding the alleged abetment, the Tribunal set aside the penalty and allowed the appeal, granting consequential reliefs as necessary. The decision was based on the failure to establish the allegations against the appellant and his colleague, emphasizing the importance of evidence in supporting departmental proceedings.This detailed analysis of the judgment highlights the key legal issues, the arguments presented, and the Tribunal's reasoning in reaching its decision to set aside the penalty imposed on the appellant.