By TIOL News Service

MUMBAI, SEPT 12, 2018: THE appellant was intercepted by the AIU at Mumbai Airport on 8th January, 2006 while he was proceeding for security check after clearance by the immigration and the custom authorities which resulted in recovery of foreign currency equivalent to Rs.1.59 crores.

This led to proceeding against the appellant as well as the persons (Mr. Rajendra Bhutada and Smt. Bharti Bhutada), who had allegedly supplied the foreign currency to the appellant for carrying abroad.

By an order dated 22nd July, 2011, the Commissioner of Customs confiscated the foreign currency being prohibited goods and imposed penalty of Rs.1.25 crores on Mr. Rajendra Bhutada, Rs.25 lakhs on Smt. Bharti Bhutada and Rs.50 lakhs upon the appellant herein.

The Tribunal, on examination of the role of each of them, found that though the penalty was justified, the quantum of penalty had to be reduced. In the circumstances, the penalty imposed under Section 114(i) of the Act was reduced from Rs.1.25 crores to Rs.25 lakhs in respect of Mr. Rajendra Bhutada, from Rs.25 lakhs to Rs.1 lakh in respect of Smt. Bharati Bhutada and from Rs.50 lakhs to Rs.5 lakhs in respect of the appellant.

The grievance of the appellant, in appeal before the High Court, is -

(a) the amount of penalty imposed upon the appellant is excessive when Smt.Bharati Bhutada, wife of the master mind has been imposed a penalty of only Rs.1 lakh;

(b) An opportunity to cross examine certain witnesses who had deposed against the appellant has not been given; and  

(c) The statements made by the appellant in English language were retracted and also that the statements were made under coercion.

The High Court observed -

+ Tribunal has examined these very contentions raised by the appellant before us and reduced the penalty imposed … taking into account the role attributable to each of them in illegal export of foreign currency. This is a finding of fact and in the absence of it being pointed out that the role of Smt. Bharati Bhutada was much more than mere handing over the foreign currency, no reason to interfere with the impugned order can arise.

+ So far as non grant of cross examination of witnesses are concerned, the impugned order of the Tribunal has considered the same and held that some of the witnesses had been offered for cross examination and those not offered for cross examination were not shown to have prejudiced the appellant in any manner.

+ So far as statement made under duress and/or threat is concerned, the impugned order records the fact that in the remand application before the Chief Metropolitan Magistrate, it has been recorded that there was no complaint made by the appellant when he was produced before the Magistrate.

The High Court concluded that the view taken by the Tribunal on the facts as available before it, is a possible view and no substantial question of law arises.

The High Court also noted that the appeals filed by Mr. Rajendra Bhutada and Smt. Bharti Bhutada were dismissed on 17th April, 2017 as being pure findings of facts, not giving rise to any substantial question of law and similarly appeals by the Revenue seeking enhancement of the quantum of penalties upon the appellants, were also dismissed by order dated 10th April, 2017.

The present appeal was dismissed.

(See 2018-TIOL-1886-HC-MUM-CUS)