ORDER
Jyoti Balasundaram, Member (J)
1. The brief facts of the case are that on 12.1.95, DRI officers intercepted one Majeedhu Rawther Gani who was to travel by Emirates Flight and recovered foreign currency equivalent to Rs. 14,25,800/- and US $ 500/- equivalent to Rs. 15,685/- from his person. His statement was recorded under Section 108 of the Customs Act, 1962. He stated that his real name was M. Khan Sahibu; he got the passport in the name of Majeedhu R. Gani at the instance of one Mohammed in October, 1994; that one Barkat Ali engaged him in carrying foreign currency concealed in body from Bombay to Dubai for which he was to be paid Rs. 2500/- per trip. He accepted the offer; Barkat Ali also introduced one Mohd. Ali Choori Abbas on 8.1.95 and he received air ticket and a packet of 400 foreign currency notes from Abbas and another 5 notes of US $ 100 each were given to him as his F.T.S. The business premises of M/s. Viscerey Travel and Telecom Agency owned by the present appellant and run by Shri Mohd. Abbas was searched and nothing was found. Abbas’s’ statement was recorded in which he stated that he was introduced to the appellant and to the two others by one Mukri who were involved in smuggling business; that he also joined them; the appellant gave him guest house and P.C.O to run on payment of commission basis; that gold would be sent through carriers to India which would be sold by the appellant and sale proceeds would be sent in the form of foreign currency by him through carriers; that the appellant used to pay Rs. 7000/- per carrier plus the air ticket; that the business started from December, 1994 and 19 such carriers were sent by him to Dubai. He also stated that he had arranged for travel of Gani (M. Sahibu) through one Saleem and gave him 405 foreign currency notes. Show cause notice dated 20.6.95 proposing confiscation of foreign currency under seizure on the ground that it was attended to be smuggled out of India illegally and originally imported into India also illegally and proposing imposition of penalty on Majeedhu R. Gani, Abbas and the appellant was issued; notice was adjudicated by the Commissioner of Customs, who ordered absolute confiscation of the currencies and imposed penalty of Rs. One lakh on the passenger from whom the currency was recovered and Rs. 1.50 lakhs each on Abbas and the appellant. The appellant moved the Tribunal against the order on the ground that it was an ex-parte one; the Tribunal set aside the impugned order in so far as it related to the appellant and remanded back to the Commissioner for compliance with the principles of natural justice; the Commissioner of Customs once again penalised the appellant to the same extent as in the earlier case; hence this appeal.
2. We have heard both sides. We find that the show cause notice alleged that the foreign currency recovered from Majeedhu R. Gani was originally imported into India in contravention of the provisions of Section 11 of the Customs Act and was being attempted to be smuggled out of India illegally, and that thus liable to confiscation under Section 111, Section 113 and Section 121 of the Customs Act, 1962. The Commissioner has, however, treated the currency in question as representing the sale proceeds of smuggled gold and the appellant as the kingpin in the import of smuggled gold into India and smuggled out the sales proceeds thereof, in the form of foreign currency. There is no material on record to connect the appellant with the smuggling of foreign currency into India or export of the same outside India, as alleged in the show cause notice. The statement of Abbas also does not implicate the appellant with the currency under seizure in the present case, which is necessary for holding the appellant liable to penalty. The statement of Abbas about the syndicate of the appellant, one Zainuddin and one Shamsuddin for sending gold through carriers into India for sale by the appellant and sending back the sales proceeds in the form of foreign currency does not link the appellant with the foreign currency seized on 12.1.95. Since there is no evidence on record to establish such connection, the penalty imposed on the appellant cannot be sustained. We accordingly, set aside the same and allow this appeal.
(Dictated in Court)