TaxTMI 
TaxTMI 
2005 (12) TMI 321
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....ected to be containing currency, with the first appellant's nametag attached to it, left unclaimed. The flight was called back and the first appellant was off loaded. She identified and claimed the suitcase. She also stated that she had forgotten to take the suitcase, in a hurry. The suitcase contained 2 bags one black coloured rexin bag with marks 'New Attack International' and another small bag together containing Indian currency of Rs. 22 lakhs and foreign currency equivalent to Rs. 5,022/-. The black coloured handbag was found to be containing Rs. 7,978/-. The currencies were seized as they were brought within the Customs area and were being attempted to be exported in violation of Foreign Exchange Management Act and Rules framed thereunder. In her statement recorded on 18-06-2002 under Section 108 of the Customs Act, she confirmed the ownership of the suitcase and the seized currency. She deposed that she received the currency from one Shri Ramesh of M/s. Sarvodaya and Mayur Jewellers, Mumbai as loan required by her husband who is having a hotel business in Dubai. She admitted to the non-declaration of the currency. Investigations were carried out by the departmental officers.....
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....e at Hyderabad Airport at the departure hall, Chaya Koshi informed Prabha D. Kannan that the Security officer wanted to check the suitcase belonging to her. The same was opened in the presence of everybody and since nothing incriminating was found, she was allowed to proceed to the aircraft IC-961. She boarded the aircraft at 1800 hrs. When the aircraft was taxying off, the Captain announced that they are returning to the Bay for Customs and Security reasons. When the door was opened, T. Srinivas introduced himself as a CISF officer and wanted to check her suitcase. She brought her suitcase and when she wanted to open and show he told her to come to the departure hall. After she was brought to the departure hall, she was kept in a cabin along with a lady constable Anita Ghosh and she was asked to claim some other bag. Though she denied the ownership, she was persuaded to claim some other bag under threat and persuasion. Her statement was recorded by Shri T. Srinivas, the CISF Commandant, which has not been placed on record. (iii) The learned Advocate relied on the following case-laws to urge that non-supply of the documents requested for is a clear violation of....
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....suitcase and anyone can put such a visiting card in it. Further such a card is only hearsay evidence and not substantive evidence. (vi) Since the suitcase was unclaimed, and lying in the Security Area and also was not in the possession of the first appellant, when she was off-loaded from flight IC 961, after it left Bay No. 2 and about to take off and in view of the retraction of the statements by both the appellants on 4-7-2002 before the Hon'ble Judge, Economic Offences Court, it was urged that the appellants have nothing to do with the currency and they are not liable for penalty under Section 114(i). For the same reason, FEMA Act and Regulations are not attracted. Further, she has not violated Section 77 of the Customs Act inasmuch as she made a correct declaration regarding the contents of her baggage in the Crew Baggage Declaration Form. (vii) A careful reading of Section 113(d) ibid, would show that in order to invoke the provisions of 113(d), it is necessary to show that:- (a) There was an attempt to export any goods. (b) Or such goods were brought within the limits of any ....
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....tempt to take the impugned goods out of India. It is not even Revenue's case that she brought the said currency to the Customs Area herself and attempted to export and such an attempt was frustrated by the Customs Officers. On the contrary, it is on record that, the said suitcase was lying unclaimed in the Security Area (CISF) and that the Aircraft IC 961, with the crew including the first appellant, taxied off to the runaway and was about to takeoff. It was with the help of Control Tower that the Aircraft was requested to come back to Bay No. 1 for offloading the first appellant. The test to prove an attempt laid down in the case of Mohd. Yakub has not been proved. (x) The following decisions were also relied on :- (a) Kashmiri v. Collector of Customs - 1992 (57) E.L.T. 284 (b) Ranjit Export Pvt. Ltd. v. CC, Madras - 1985 (21) E.L.T. 353 (Mad.) (c) Dooars Transport Pvt. Ltd. v. CC (Prev.) - 1993 (64) E.L.T. 322 (T) (d) Ajay Gurudasmal Arora v. CC (Prev.), Mum. - 2002 (147) E.L.T. 943 (T). (xi) The appell....
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....irmed the .maintenance of certain records such as Station Diary, Register at the X-Ray Machine, etc. It is the contention of the appellants that if these documents had been supplied, they would have established that the suitcase produced by the appellant no. 1 for security check did not contain the seized currency at the time of check in her bag. In order to bring out the truth in this episode, these documents are very relevant and they would have been of immense help to the Customs in establishing the truth. In our view, Revenue should have made efforts to procure these documents and to supply the same to the appellants for their proper defence. Their request should not have been brushed aside on the ground that they were not relied on. It is on record that in this case, the suitcase containing the currency was found unclaimed in the Security Area by the CISF. In this circumstance, the records maintained by the CISF and the statement recorded before the Assistant Commandant are, beyond doubt, very relevant documents. The non-supply of these documents amounts to denial of the Principles of Natural Justice. The learned Advocate, before the Adjudicating Authority, made the submission....
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....e cannot come to definite conclusions based only on the statements of the appellants in the absence of corroborative evidences. If the appellants really owned the currencies, it is not very clear under what circumstances, she had to abandon it. No one would believe that she had forgotten to carry a suitcase containing Rs. 22 lakhs in a hurry. Moreover, when there is Security Check, after the baggage passes through the X-ray machine, the Security normally puts a seal for having checked. It is not clear whether such a seal was affixed in the impugned suitcase. That is why, it is all the more necessary to have examined the records maintained by the CISF. There is also no evidence that the first appellant brought the suitcase with the currency from Mumbai. There is also no evidence that some person handed over the currency or the suitcase to her in Hyderabad. Moreover, the suitcase containing the currency, was not seized from the first appellant. Neither was it in the Aircraft. Since the suitcase was lying unclaimed in the Security Area, it cannot be said that the first appellant exported it or made an attempt to export the same. The Tribunal, in the case of Sripad Upadhyay v. CC, Chen....