TaxTMI 
TaxTMI 
2024 (3) TMI 1113
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....nd Mr. Mohammed S. Bahadur had handed over these currencies to the appellant. Accordingly, notice was issued to the appellant and the other two individuals referred above. 2. Upon adjudication, the adjudicating authority vide Order-in-Original No.83/2016-17 dated 23.03.2017 held that the appellant had attempted to smuggle the foreign currency out of India by way of concealment and non-declaration to the customs, the seized foreign currency are liable for confiscation under Section 113(d), 113(e) and 113(h) of the Customs Act, 1962 read with Section 11 of the Foreign Trade Development Regulation Act, 1992 as well as Foreign Exchange Management (Export and Import of Currency) Regulations, 2000 as amended. Accordingly, foreign currencies were confiscated and a penalty of Rs.9,00,000/- was imposed on the appellant under Section 114 of the Customs Act, 1962 along with penalty of Rs.6,00,000/- under Section 114AA of the Customs Act, 1962. The original authority also held that Mr. Fazal Akrami and Mr. Mohammed S. Bahadur who handed over the foreign currencies were liable for penalty under Section 114 of the Customs Act, 1962 for conspiring, aiding and abetting in smuggling the said cur....
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....1 which is unconditional and has not ordered or directed for any appropriation. The department having accepted this order, it has attained finality. It is further submitted that the impugned order has overlooked the provisions of Section 142 of the Customs Act, 1962 as the personal penalties on the other co-noticees cannot be recovered under Section 142 of the Customs Act, 1962. He relied on the following decisions to state the personal penalties cannot be recovered from him for the reasons stated in following decisions of the Hon'ble Supreme Court. * Union of India and another vs. Mustafa & Najibai Trading Co. and others: (1998) 6 SCC 79 * Sewapujanrai Indrasanrai Ltd. vs. Collector of Customs and others: AIR (1958) SC 845 * Collector of Customs, Madras and others vs. D. Bhoormall: ( 1974) 2 (SCC) 544 5. The learned Authorised Representative for the Revenue reiterated the findings of the lower authorities. 6. Heard both sides. In the first round of litigation the original authority clearly held that the appellant had attempted to smuggle the foreign currencies out of India by way of concealment and on account of non-declaration to the customs, seiz....
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....r of Customs or Deputy Commissioner of Customs] may recover or may require any other officer of customs to recover the amount so payable by detaining and selling any goods belonging to such person which are under the control of the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] or such other officer of customs; Section 142 allows to recover the amounts that is due from the appellant from any money that is payable to him provided he is a defaulter but in the present case, the personal penalties of the co-noticees are being recovered as dues deeming the appellant as a defaulter which is beyond the scope of Section 142 of the customs Act 1962. 9. As rightly relied upon by the appellant the decision of the Hon'ble Supreme Court in the case of Collector of Customs Madras and others vs. D Bhoormall (supra) held that: "33. ...............It will be sufficient to reiterate that the penalty of confiscation is a penalty in rem which is enforced against the goods and the second kind of penalty is one in personam which is enforced against the person concerned in the smuggling of the goods." 10. So also in the case of Union of India & Another vs. Mustafa....
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....he imported vehicle could be retained by the Customs for recovery of the personal penalty levied on Shri Yahoo. It is seen from the impugned order Ext.P1 that separate penalty is levied on the importer namely, the petitioner and two other persons against whom proceedings for penalty was initiated under Section 112(a) of the Customs Act. The personal penalty levied against Shri Yahoo under Section 112(a) of the Customs Act is for helping the petitioner to commit the offence i.e. for abetment. The penalty so levied being personal cannot be recovered from the importer or any other person. Therefore, the petitioner is not personally liable for the penalty levied on Shri Yahoo and the amount also cannot be recovered from the petitioner. The next question to be considered is whether the vehicle imported by the petitioner could be detained by the Customs until personal penalty levied on Shri Yahoo is paid or recovered. This is permissible only if the statute creates charge for the personal penalty on the imported vehicle which is not there in the statute. Release of vehicle after confiscation is covered by Section 125 of the Act which gives an option to the importer to pay the fine levied....