ORDER
P.S. Bajaj, Member (J)
1. In this appeal the appellant has contested the impugned order dated 5-7-2001 vide which the Commissioner (Appeals) has affirmed the order-in-original imposing penalty of Rs. 50,000/- on him and confiscating the currency recovered from his possession.
2. The facts are not in much in dispute. On 9-12-93, the appellant was intercepted at Railway Station, Sadulpur Junction when he came from Delhi in Delhi-Bikaner Train. On conducting his search, Indian currency Rs. 7,19,300/- was recovered from him. He disclosed that the seized currency was sale proceeds of 114 tolas of smuggled gold which was sent by Lal Mohd. of Saudi Arabia illegally to Satyanarain Soni. Thereafter search of the house of Satyanarain Soni was carried out which resulted in recovery of Rs. 18,900/-. Parameshwar Soni and his father Satyanarain Soni to whom the gold was alleged to have been sold, denied this fact in their respective statements. However, Hanif Mohd. in his statement stated that he sold 100 Kgs. of silver and the seized money was the sale proceeds of that silver. But he could not produce any evidence of legal acquisition of the silver. After completion of investigation, the present appellant and the others named above were served with the show cause notice. The adjudicating authority has imposed a penalty of Rs. 50,000/- on the present appellant, but exhonorated Satyanarain Soni and Parameshwar Soni and Jagdish Saraf to whom also the gold was allegedly sold. The adjudicating authority also ordered the confiscation of the Indian currency.
3. The present appellant has challenged the imposition of penalty. He has claimed the confiscated Indian currency also.
4. I have heard both sides. The perusal of the order-in-original shows that Satyanarain Soni, his son Parameshwar Soni as well as Jagdish Saraf to whom the smuggled gold was allegedly sold had been exhonorated by the adjudicating authority for want of evidence to prove the purchase of the smuggled gold by them from the present appellant. Therefore, the Indian currency recovered from the appellant could not be said to be the sale proceeds of smuggled gold sold to the above said persons. Consequently, the penalty imposed on the appellant is unjustifiable. However, the claim of the appellant for the currency is not sustainable as this currency according to him belonged to Hanif Mohd. on whose behalf he was carrying the money. He being only a carrier, cannot claim the seized currency. The seized currency could be claimed only Hanif Mohd. who is alleged to be the owner. But there is nothing on the record to suggest that Hanif Mohd. has claimed this amount. The ratio of law laid down in Samsuddin Sheikh v. Collector of Customs, Calcutta – 1990 (47) E.L.T. 48 (Tribunal) = 1990 (26) ECR 227 referred by the Counsel is not’ attracted to the facts of the case. In that case it has been only observed that when the supplier himself has been absolved for want of evidence, the recipient of the alleged smuggled gold could not be held liable. In the instant case, the present appellant has been given the benefit and the penalty is being set aside against him for the reason that the alleged recipient of the gold from him had been exhonorated by the adjudicating authority. Therefore, no capital out of this judgment can be made by the appellant. Similarly, the ratio of law laid down in Hukmi Chand Ghewar Chand Saraf v. Collector of Customs – 1994 (74) E.L.T. 56 as well as Amco Electronics v. Collector of Customs – 1992 (61) E.L.T. 650 referred by the Counsel, do not in any manner help the appellant in claiming the money especially when he himself had admitted that the money did not belong to him but to Mohd. Haniff. That being so, the claim for the release of the confiscated currency can be lodged only to Hanif Mohd. and not by the appellant who was only a carrier of money on his behalf.
5. In view the discussion made above, the impugned order to the extent of imposing the penalty of Rs. 50,000/- on the appellant is set aside and the rest of the order is maintained. The appeal of the appellant stands accordingly disposed of with consequential relief, if any, permissible under the law.