Page 242 - ELT_15th August 2020_Vol 373_Part 4

576 EXCISE LAW TIMES [ Vol. 373

“Evidence - Confession statement made before Customs officer though re-
tracted within six days is an admission and binding since Customs Officers
are not Police Officers - Section 108 of the Customs Act and FERA.”
Commissioner (Appeals) in the impugned order-in-appeal has observed as fol-
lows :-
“In the absence of any evidence, direct or implied, that the rightful owner
of the currency had any role to play in non-declaration of the foreign cur-
rency by Shri Tushar Kumar, any penalty on Shri Virender Verma will
amount to arbitrariness, difficult to justify.”
This observation of Commissioner (Appeals) is fallacious and is completely de-
void of merit.
The role of Virender Verma cannot be undermined in this Hawala racket.
Government observes that Virender Verma has abetted smuggling of impugned
forex and is liable for penalty under Section 114 of Customs Act, 1962.
14. The adjudicating authority has imposed a penalty of Rs. 1.5 lacs on
Tushar Kumar. Hon’ble Delhi High Court in the case of Ram Kumar v. Commis-
sioner of Customs [2015 (320) E.L.T. 368 (Del.)] has held as follows :-
“The aforesaid stand, we had observed, confirms and reinforces the finding
that the applicant was merely a carrier. The currency belonged to a third
person. The reference to the third person obviously was to Vinod Kumar
Saini. It is quite apparent that the paltry fine of Rs. 2 lakhs imposed on the
applicant was in view of the fact that he was not the owner.”
In this case also a lesser amount of penalty has been imposed on Tushar Kumar
by the adjudicating authority since he is the carrier of the impugned currency.
Government holds that keeping in view gravity of the offence and the fact that
the respondent is” a habitual offender, a higher quantum of penalty merits to be
imposed on Tushar Kumar.
15. In view of the above discussions, Government modifies the orders
passed by the lower authorities as follows :
(i) Impugned currency is confiscated under Section 113(d), (e), (h) and
(i) of the Customs Act, 1962.
(ii) The option of redemption under Section 125 of the Customs Act,
1962 is denied.
(iii) A penalty of Rs. 5 lacs (Rupees Five Lacs) is imposed on Tushar
Kumar under Section 114(i) of the Customs Act, 1962 read with
Regulation 13 of Foreign Exchange Management (Export and Im-
port of Currency) Regulation, 2000.
(iii) Penalty of Rs. 7 lacs (Rupees Seven lacs) imposed on Virender Ver-
ma by the adjudicating authority under Section 114(i) of the Cus-
toms Act, 1962 read with Regulation 13 of Foreign Exchange Man-
agement (Export and Import of Currency) Regulation, 2000 is up-
held.
16. Application filed by the applicant is allowed to this extent.

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EXCISE LAW TIMES  15th August 2020  242