G.C.R.No.3 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision:-12.5.2010 Harinder Pal Singh Shergill ...Petitioner Versus The Registrar, Customs, Excise and Gold (Control) Appellate Tribunal and another ...Respondents CORAM: HON'BLE MR.JUSTICE ASHUTOSH MOHUNTA HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Puneet Bali, Advocate for the petitioner. Mr.Gurpreet Singh, Sr.Standing Counsel for the respondents. M ehinder S ingh S ullar , J. The conspectus of the facts in epitome, relevant for disposal of the present reference petition and emanating from the record is that, having received the secret intelligence information on 3.8.1998, petitioner Harinder Pal Singh Shergill, who was Pilot/Captain of Air India, was apprehended. On that day, he was assigned the duty of operating Air India Flight No.A1 670, from Mumbai to Trivandrum-Doha-Bahrain and was the Commander of the Air Craft. Having completed all the codal formalities and during the course of personal search, the currency of 61,000 US $ equivalent to India Rs.25,37,000/- was recovered in a black coloured cloth belt tied around his waist beneath the trousers, beyond the declaration made by him in this respect. Apart from it, US $ 5217 equivalent to Indian currency of Rs.2,17,027/- were also recovered from his Alba brand wallet. Thus, in all US $ 66217 equivalent to Indian currency of Rs.27,54,627/- were recovered. The petitioner had no document or RBI's permit to prove the acquisition or possession of the foreign currency, which was seized by the officers of the Customs under panchanama and after following the due procedure. 2. The petitioner tried to explain that he was carrying the currency at the instance of Kuttie. One Yakub Mohammed contacted him and delivered the G.C.R.No.3 of 2006 2 cloth belt containing the currency to be carried to Bahrain for Kuttie. He also gave him one extra cloth belt to be used in case of any damage to his belt. The additional belt was also recovered from his baggage and seized. He also admitted that he brought the currency tied to his waist to the airport by his personal Fiat car bearing registration No.BLN 4518. Accordingly, the vehicle alongwith its documents was also taken into possession and seized under the Act. Petitioner was confronted with copy of passport and photograph of one Kamlesh Vyas, then he admitted that he knew him for the last two years. He was a jeweller by profession and that he had been making jewellery for him (petitioner) and his family. The petitioner also admitted that he is well aware that carrying foreign currency out of India is an offence and he was knowingly committed this offence. He has categorically admitted his guilt and made the statement in this regard under section 108 of the Customs Act, 1962 (for short “the Act”). 3. Levelling a variety of allegations, in all, the revenue claimed that the petitioner was smuggling the foreign currency out of India in violations of the provisions of the Act. 4. Therefore, the notice dated 22/27.1.1999 (Annexure P7), containing the detailed description of the material, was issued to all the offenders, including the petitioner to show cause as to why the said foreign currency i.e. US $ 66,217/- equivalent to Indian currency of Rs.27,54,627/-, the recovered articles and car bearing registration No.NIN-4518 used for carrying and smuggling of foreign currency, be not confiscated under sections 113 (d), (e) and (h) of the Act read with sections 13(2) and 67 of Foreign Exchange Regulation Act, 1973, sections 115, 118 and 119 of the Act and penalty be not imposed under section 114 of the Act. 5. In the wake of notice (Annexure P7), the petitioner submitted his interim reply (Annexure P8), inter-alia, denying the allegations contained in the notice. The case was stated to have falsely and maliciously been registered against G.C.R.No.3 of 2006 3 him by the custom authorities. He has ample and vital evidence, to prove his innocence in this connection. According to the petitioner, he would file his detailed reply, after the cross-examination of the witnesses. He has also given a long list of 14 witnesses to be cross-examined by him. 6. The Adjudicating Authority noticed, in regard to the case of petitioner, as under:- “Shri Raichandani, Advocate, on behalf of Captain Shergil filed an interim reply to the Show cause notice and requested cross examination of various witnesses and would thereafter file final reply. Various dates were given for personal hearing and various witnesses had been examined by the Advocate but final reply has not been received from Shergil or his Advocate. Personal hearing memos were sent to Mr.Shergil on 28.9.2000, 23.10.00, 10.11.00, 11.2.00 at his given address which were returned by postal authorities with remarks “Not found”. Thereafter, neither he nor his Advocate approached the department.” 7. The explanation put forth by the petitioner in his reply did not find favour and ultimately finding no alternative, the Adjudicating Authority confiscated the currency, articles and car and imposed the personal penalty of Rs.10 lacs on him under section 114 of the Act, vide impugned order dated 23.3.2001 (Annexure P11) alongwith other offenders in this connection. 8. Aggrieved by the impugned order (Annexure P11), the petitioner filed the appeal. The customs, Excise and Gold (Control) Appellate Tribunal, while reducing the quantum of penalty from Rs.10 lacs to Rs.5 lacs, dismissed his appeal, vide order dated 2.6.2003 (Annexure P14), the operative part of which is as under:- “The case involves attempt to smuggle over US $ 61000 out of India in a cleverly concealed manner. The appellant also was deliberately misusing his privileged position as a Pilot of the national carrier to commit the G.C.R.No.3 of 2006 4 offence. In such a case imposition of penalty is fully justified. However, taking to account the fact the currency did not belong to him and he was only carrying it out of the country on behalf of another person and the appellant is only a salary earner, we reduce the quantum of penalty from Rs.10 lakhs to Rs.5 lakhs. In the result, the impugned order is confirmed except for the relief indicated above with regard to the car and penalty.” 9. The petitioner still did not feel satisfied with the impugned orders (Annexures P11 and P14) and filed a petition under section 130A of the Act in this Court, for directing the Appellate Tribunal to refer the question of law arising from the impugned order (Annexure P14). In the wake of his petition bearing CEC No.9 of 2003, this Court directed the Appellate Tribunal to refer the indicated question framed for opinion of this Court, vide order dated 10.1.2006. 10. In pursuance of the order of this Court, the Appellate Tribunal referred the following question of law for adjudication by this Court, vide order dated 24.3.2006:- “Whether on the facts and in the circumstances of the case, the order of the Tribunal stands vitiated on the ground that it has failed to go into the question of adequate opportunity of hearing to the assessee?” That is how, we are seized of the matter. 11. Thus, the detailed facts contained in the notice (Annexure P7) and in the impugned orders (Annexures P11 and P14) are neither intricate nor much disputed. 12. Above being the position on record, now the core question, that arises for determination in this case, is whether the adequate opportunity of hearing was granted to the petitioner or not? 13. Having heard the learned counsel for the parties and having gone through the record with their valuable help, we are of the considered opinion that G.C.R.No.3 of 2006 5 there is no merit in controversy raised in the present reference petition in this relevant direction. 14. The main celebrated argument of the learned counsel that as full opportunity of hearing was not afforded to the petitioner before passing the confiscation order by the Adjudicating Authority, therefore, the same is vitiated, is not only devoid of merits but misplaced as well. In the present case, the currency and articles were confiscated and penalty was imposed under the Act. Section 124 of the Act postulates that “no order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person, is given (a) a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; (c) a reasonable opportunity of being heard in the matter: Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may at the request of the person concerned be oral.” 15. Meaning thereby, a co-joint reading of these provisions would reveal that the authorities were only required to give a notice, opportunity of making representation in writing and reasonable opportunity of being heard. 16. In the instant case, it is not a matter of dispute that having completed all the codal formalities, a show cause notice (Annexure P7), containing the complete details of the entire case, was issued to the petitioner. In pursuance thereof, his counsel Shri Rai Chandani appeared and filed interim reply (Annexure P8) to the notice, inter-alia, denying the allegations and requested for cross- examination of (14) various witnesses and then to file final reply. 17. The learned counsel for the petitioner did not point out any provision G.C.R.No.3 of 2006 6 of law, which would give him the legal right to file final reply after cross- examination of the witnesses. On the contrary, only legal requirement was to give him a show cause notice to enable him to file representation and opportunity of being heard as contemplated under section 124 of the Act. The mere fact of filing a long list of 14 witnesses for cross-examination by the petitioner in his reply itself is sufficient to prove that from the very beginning, he intended and considerably delayed the disposal of the matter. 18. Not only that, a perusal of the order (Annexure P11) of the Adjudicating Authority as reproduced above, would reveal that various dates were given to the petitioner for personal hearing and various witnesses had been examined by the Advocate, but final reply was not filed by the petitioner. Personal hearing memos were sent to the petitioner on 28.9.2000, 23.10.2000, 10.11.2000 and 11.2.2000 at his given address. The proceeding remained pending for more than two years and the petitioner delayed the matter on one pretext or the other. When the petitioner failed to appear, again four personal hearing memos were issued to him as well as his Advocate to appear in the proceeding, but in vain. Finding no alternative, the Adjudicating Authority confiscated the currency and articles and imposed the penalty, vide a well reasoned order (Annexure P11). Therefore, it cannot possibly be saith that no adequate opportunity of hearing was granted to the petitioner in this relevant direction. 19. Moreover, even the Tribunal has dealt with the real controversy and rightly decided the appeal in correct perspective, vide which, a penalty of Rs.10 lacs imposed on the petitioner was reduced to Rs.5 lacs. Thus, the contrary argument, “stricto sensu” deserves to be and are hereby repelled under the present set of circumstances. 20. In the light of the aforesaid reasons, it is held that the Adjudicating Authority provided adequate opportunities to the petitioner before passing the impugned order and the Tribunal has rightly dismissed his appeal in the obtaining G.C.R.No.3 of 2006 7 circumstances of the case. Hence, the question of law is answered against the petitioner and in favour of the revenue. 21. For the reasons recorded above, the instant reference is hereby declined. (Mehinder Singh Sullar) Judge (Ashutosh Mohunta) Judge 12.5.2010 AS Whether to be referred to reporter? Yes/No