N P Thafsal vs Commissioner Of Customs Cochin-Cus

[Arising out of Order-in-Appeal No. COC-CUSTM-0000-APP-050-14-15 dated 16/04/2014 passed by Commissioner of CUSTOMS , COCHIN( Appeal) ]

For approval and signature:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

N P Thafsal S/o, Kp Usman, Daya Mahal, Ummenchira P.o, Tellichery Taluk, KANNUR - 00 KERALA Appellant(s)

Versus

Commissioner of Customs Cochin-cus CUSTOM HOUSE COCHIN - 682009 KERALA Respondent(s)

Appearance:

Shri MANU TOM, Advocate M/S. B. RAMAN PILLAI & ASSOCIATES, ADVS, OLD RAILWAY STATION ROAD, KOCHI - 682018 KERALA For the Appellant

Shri R. Gurunathan, Addl. Commissioner(AR) For the Respondent

Date of Hearing: 06/03/2015

Date of Decision: 06/03/2015

CORAM:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20577 / 2015

Per : B.S.V.MURTHY

DRI, Calicut had seized the fake Indian currency notes worth Rs.14.99 lakhs from Shri Mohammed A.T. and the appellant Shri N.P. Thafsal, of Tellicherry on 19/06/2007 while they were travelling in a Wagon R car bearing registration No.KL 13M 2675 near to Cheruvanoor Co.-op Bank, Calicut. Shri N.P. Thahir was the owner of the said vehicle and he had already permitted his brother Shri N.P. Thafsal to use the vehicle as and when required. The fake Indian currency notes were found concealed in two tin containers in a cardboard carton. On being questioned, Shri Mohammed A.T. told that he, as directed by Haji M. Abdul Rahiman @ Abdul Haji @ Amitabh Bachen, received the cardboard carton from Shri Raheem A.M. at his residence at Feroke, Calicut. On being contacted Shri A.M. Raheem by DRI officers, he admitted that he received the cardboard carton containing the fake Indian currency notes from one Mr. Ahmmed in Dubai with the direction to hand over the same to the person who would contact him at Karipur Airport and same was brought to Calicut Airport by Flight No.IC 537 in the morning of 19/06/2007. When nobody had received the cardboard at Karipur Airport, Shri A.M. Raheem went to his residence at Cheruvanoor and collected the carton. Shortly thereafter the Wagon R car in which Mohammed AT and Thafsal were travelling was intercepted by the DRI officers and recovered the cardboard containing the fake currency notes. Proceedings were initiated against 5 persons, among whom appellant also one, culminated in imposition of penalty of Rs.2 lakhs. Aggrieved by imposition of penalty, the appellant has filed appeal and is seeking stay during the pendency of appeal. After hearing both the sides, I find that the appeal itself can be decided and therefore the requirement of predeposit is waived and appeal is taken up for final decision.

2. The learned counsel submits that the appellant has been acquitted by the Additional Chief Judicial Magistrate Court, Ernakulam vide order dt. 25/02/2014 taking a view that the appellant had no mens rea and has no knowledge of the fact that the carton contained fake currencies. He submits that on the last occasion when the matter had come up, the Department was asked to ascertain whether any appeal has been filed. Further the learned counsel also submits that for filing the appeal, special leave to file an appeal has to be taken from the High Court and the time limit to seek such leave is over.

3. After hearing both the sides and going through the records, I find that the Honble Court in paragraph 27 of the order made the following observation:-

27. It is true that third accused was driving the car which contained the cardboard carton containing counterfeit currencies in which the second accused was also travelling. But Ext. P.5 statement of first accused does not implicate third accused. The second accused has not attributed any knowledge of the contents of the cardboard carton to the 3rd accused. There is nothing in Ext. P.7 to indicate that the third accused was conscious of the plot to smuggle counterfeit currencies. He has been made an accused only for the reason that he was driving the car in which the second accused was sitting with smuggled goods. Only circumstance proved against third accused was that he was driving the said car. It appears that the 3rd accused had no knowledge of the contents of the cardboard carton carried in the car and he had simply assisted his friend on a request made by him. Ext. P.6 confessions of second accused does not attribute any knowledge of contents of carton to their accused. Evidence tendered by prosecution witnesses and Ext. P.7 statement will not prove that third accused had possessed counterfeit currencies. The evidence on record does not prove that 3rd accused was knowingly concerned in smuggling of the counterfeit currencies in violation of prohibition.

4. The observations of the Honble Court clearly show that the appellant has been found to have no knowledge of the fact that the carton contained fake currency and he had not at all involved himself in transportation of fake currency knowing that he was doing so. Under the circumstances, in view of the clear finding, the penalty imposed on the appellant cannot be sustained. Accordingly, appeal is allowed.

(Order pronounced and dictated in open court)

B.S.V.MURTHY TECHNICAL MEMBER Raja.

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