1991 (3) TMI 274 - AT - Customs

Tribunal upholds waiver of Show Cause Notice, deems gold coin importation without RBI approval an offense

The Tribunal upheld the waiver of the Show Cause Notice, finding it valid and dismissing the appellant's argument. Importing gold coins and foreign ... Natural Justice - Issue of show cause notice waived by appellant consciously Issues Involved:1. Waiver of Show Cause Notice2. Legality of Importing Gold Coins and Foreign Currency3. Non-Mention of Specific Sub-Section of Section 112 of the Customs Act in the Penalty Order4. Confiscation of Gold Coins and Foreign Currency5. Violation of Principles of Natural JusticeIssue-Wise Detailed Analysis:1. Waiver of Show Cause Notice:The appellant contended that the Department should have issued a Show Cause Notice, asserting that he did not knowingly waive this statutory requirement. The Tribunal, however, found that the appellant had indeed waived the Show Cause Notice and had sufficient time to contemplate his actions and obtain legal advice. The Tribunal concluded that the waiver was valid and dismissed the appellant's argument that he was unaware of his legal rights.2. Legality of Importing Gold Coins and Foreign Currency:The Tribunal examined the provisions of the Customs Act and the Foreign Exchange Regulations Act (FERA), 1973. It was established that under Section 13 of FERA and relevant notifications, no person can bring gold coins or foreign currency into India without the specific permission of the Reserve Bank of India (RBI). The appellant admitted that he did not have such permission. The Tribunal held that even if the currency was lawfully acquired, importing it without RBI's permission constituted an offense.3. Non-Mention of Specific Sub-Section of Section 112 of the Customs Act in the Penalty Order:The Tribunal noted that the adjudicating authority failed to specify whether the penalty was imposed under Section 112(a) or 112(b) of the Customs Act. Citing the judgments in B. Lakshmichand v. Union of India and Collector of Customs and Central Excise, Chandigarh v. C. Ajit Singh, the Tribunal emphasized that the authorities must clearly state under which clause of Section 112 the penalty is imposed. The omission to specify the sub-section was deemed a serious procedural defect, rendering the penalty order unsustainable.4. Confiscation of Gold Coins and Foreign Currency:The Tribunal confirmed the confiscation of the gold coins, noting that the appellant had concealed them in his undergarments, indicating a planned action to import them illegally. However, regarding the foreign currency, the Tribunal found that the matter required further examination to determine if leniency could be applied, especially since the appellant claimed part of the currency was lawfully earned and intended for his sister's marriage expenses.5. Violation of Principles of Natural Justice:The Tribunal addressed the appellant's claim that he was denied an opportunity to defend himself due to the lack of a Show Cause Notice. It found that the appellant had been given ample opportunities to present his case and had admitted the offense before the adjudicating officer. Consequently, the Tribunal concluded that there was no violation of the principles of natural justice.Separate Judgments:The Tribunal's decision was divided, with one member (S.K. Bhatnagar, Member (T)) dissenting. He argued that the non-mention of the specific sub-section of Section 112 was a minor technical error that did not vitiate the proceedings. He emphasized that the appellant had waived the Show Cause Notice and had admitted the charges, thus the penalty should be upheld.Final Decision:Due to the difference in opinions, the matter was referred to the Hon'ble President for a third member's consideration. The third member (Harish Chander, Vice-President) agreed with the Judicial Member (D.M. Vasavada) that the non-mention of the specific sub-section of Section 112 was a significant procedural defect. Consequently, the Tribunal set aside the penalty imposed on the appellant and ordered a re-examination of the confiscation of the foreign currency, allowing the appellant to present documentary evidence in support of his claims. The confiscation of the gold coins was confirmed.