HYDER ALI Vs. CC (AIRPORT)

JUDGEMENT

(1.) BY this appeal the appellant challenges the order in original OS No. 10/97 INT dated 10.7.1998 passed by the Commissioner of Customs, (Airport), Madras by which he has imposed a penalty of Rs. 5 lakhs on the appellant under Section 114(i) of the Customs Act, 1962, the Act for short. There are two other persons on whom penalties have been imposed by the Commissioner under the same order. In the present appeal, I am concerned with the appeal of the present appellant only.

(2.) BRIEF facts of the case are that the one Shri Wahab Habibur Rehman (WH Rehman) was intercepted by the officers of the DRI when he was bound for Singapore by flight SQ -409 on 11.8.1997. They conducted personal search on the said WB Rehman which resulted in the recovery of 1500 Deutsche Marks from the left pocket of the shirt worn by him. As he did not have any valid permit to take the foreign currencies/travellers' Cheque out of the country and as he had not declared the same to the Customs authorities they were seized under the Act. Statement was recorded from him who implicated the appellant herein. Statements were also recorded from various other persons who denied any connection with the foreign currency under seizure. Proceedings were accordingly initiated by issue of show cause notice to WH Rehman, Hyder Ali, the present appellant and Murugesan and the proceedings culminated in the impugned order, whereby the Travellers' Cheque equivalent to Indian Rs. 10,01,252/ - was confiscated. Tata Sumo vehicle bearing Registration No. TN 04 -Y -786 was also confiscated with option to redeem the same besides imposition of penalties on WH Rahman, Hyder Ali (the present appellant) and Murugesan.

(3.) HEARD Shri BV Kumar, learned Senior Advocate for the appellant who submitted that the case against the appellant is built up solely on the basis of the statement recorded from WH Rehman from whose possession foreign currency was recovered, and also from Kuppuswamy, Car Driver of the Tata Sumo. No statement has been obtained from the appellant herein. His residential premises was searched and the DRI officers did not get anything incriminating. Appellant was not allowed to cross -examine WH Rehman and Kuppuswamy. There is, therefore, violation of principles of natural justice inasmuch as the persons on whose statements reliance has been placed to find the appellant guilty, has not been allowed to be cross -examined. He has also invited my attention to para 30 of the impugned order wherein the adjudicating authority has recorded that WH Rehman has not filed any reply to the show cause notice and that Appellant Hyder Ali also did not file any reply, however, on his behalf, Advocate Satish Sunder filed the reply. He has further invited my attention to para 20 of the impugned order wherein the Commissioner has recorded that WH Rehman by his reply dated 1.5.1998 has denied all the allegations against him, but in para 30 the Commissioner has stated that no reply has been filed by the said WH Rehman. Therefore, the learned Counsel submitted that the Commissioner has proceeded to decided the case as if there was no retraction of the statement made by WH Rehman. He submitted that WH Rehman had retracted his statement and retracted statement of co -accused cannot be the sole basis for imposition of penalty. He also referred to the following case laws in support of his plea for setting aside the order impugned.