Page 240 - ELT_15th August 2020_Vol 373_Part 4

574 EXCISE LAW TIMES [ Vol. 373

“In view of meaning of the word “prohibition” as construed laid down by
the Supreme Court in Om Prakash Bhatia case we have to hold that the im-
ported gold was ‘prohibited goods’ since the respondent is not an eligible
passenger who did not satisfy the conditions.”
The Apex Court has upheld the order of Madras High Court and dismissed the
Special Leave to Appeal (Civil) No. 22072 of 2009 filed by Samynathan
Murugesan [2010 (254) E.L.T. A15 (S.C.)]. The Honourable Apex Court has ob-
served as follows :
“Applying the ratio of the judgment in the case of Om Prakash Bhatia v.
Commissioner of Customs, Delhi reported in 2003 (155) E.L.T. 423 (S.C.) = 2003
(6) S.C.C. 161, to the facts of the case, we find that, in the present case, the
assessee did not fulfil the basic eligibility criteria, which makes the import-
ed item a prohibited goods; hence, we see no reason to interfere with the
impugned order. The special leave petition is, accordingly, dismissed.”
8. The case File No. VIII(AP) 10/P&I/835C/Dep/2014 was called from
Commissioner of Customs, IGI Airport, New Delhi. The statements recorded
under Section 108 of Customs Act, 1962 and other documentary evidence availa-
ble in the file have been perused.
9. It is observed that Tushar Kumar in his statement tendered under
Section 108 of the Customs Act, 1962 has contended that he was carrying the im-
pugned forex on behalf of Virender Verma for a consideration. He further con-
tended that he had on an earlier occasion travelled along with Virender Verma to
Hong Kong and carried forex amounting to $20000 for a consideration of
Rs. 15,000/-.
Therefore it is apparent that Tushar Kumar could not have acquired such
a huge amount of forex on his own and was working on behalf of someone else.
It is also observed that the redemption fine amounting to Rs. Nine lacs (9 lacs)
imposed on the notice, namely, Shri Tushar Kumar by the adjudicating authority
has been paid by Virender Verma. This further reflects the financial condition of
Tushar Kumar. Hence he is a mere carrier of impugned foreign currency.
10. Apart from the statement of Shri Virender Verma recorded under
Section 108 of Customs Act, 1962, that the impugned forex is the proceeds of his
legal business in Hong Kong, there is no corroboratory evidence on record to
verify the veracity of his claim.
Apex Court in the case of Naresh J. Sukhawani v. UOI [1996 (83) E.L.T. 258
(S.C.)] has held as follows :
“It is contended that the statement of co-accused could be used only to cor-
roborate other evidence as one of the circumstances under Section 30 of the
Evidence Act. But it cannot be used as substantive evidence without cor-
roboration from other independent evidence.”
Since the statement of Virender Verma does not get corroborated from the evi-
dence on record, the finding of the adjudicating authority that Virender Verma is
the owner of forex remains unsubstantiated.
11. As mentioned earlier Tushar Kumar was arrested by the Customs
Authorities and was released on bail on 3-7-2004. It is pertinent to note that bail
bond dated 3-7-2014 of Tushar Kumar was furnished by Smt. Naina Malik who is
a relative of Virender Kumar. This shows a nexus between Tushar Kumar and
Virender Verma.
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