1. Today the case is posted for consideration of stay. However, learned Counsel submitted that the issue involved being a very limited one appeal itself could be taken up. He also submitted that there is strong prima facie case for waiving the pre-deposit.
2. Accordingly, the appeal itself is taken up for consideration after waiving the pre-deposit.
3. On 8-8-1997, the Officers of the Directorate of Revenue Intelligence seized foreign currency valued at about Rs. 47 lakhs which had been concealed in the handles of jute bags which were tendered for export.
The Exporter was M/s. Al Jabel Ali Exports & Imports. The seized foreign currency was confiscated under order-in-original No. 3/99, dated 18-10-1999 of the Commissioner of Central Excise & Customs, Cochin. The appellant Shri N. Basheer is one of the persons on whom the penalty was imposed in the impugned order. The penalty imposed on him is Rs. 1,00,000/-. The penalty was imposed in view of his role in the alleged attempted export. According to the investigation, the appellant had delivered the currency to one Shri A.P. Kunhi Mohammed and that was the currency concealed.
4. Ld. Counsel representing the appellant submitted that there was hardly any evidence linking Shri Basheer to the attempted export of foreign currency. The only material relied upon to conclude that Shri Basheer had procured and handed over the currency for export are statements of Mr. K.A. Muneer, Mr. A.P. Kunhi Mohammad and Mr. K.T.Siddique. Shri Muneer himself came to know of this from Kunhi Mohammad.
Shri Muneer who gave the statement had not seen Basheer handing over the currency. Ld. Counsel submitted that his statement was based on the version given to him by others. Ld. Counsel also submitted that according to the reply filed by appellant to the show cause notice, he was not in India at the time of the alleged attempted export and he had nothing to do with the alleged attempted export. The Revenue had not disproved this explanation of the appellant. Appellant had been under COFEPOSA detention during the investigation of the case but no questions were asked of him or his statement recorded. Ld. Counsel submitted that based on hearsay evidence and evidence of co-accused (K.A. Muneer), appellant has been punished. Ld. Counsel submitted that it is settled law that the testimony of co-accused cannot be relied upon without independent corroborative evidence [Jain Narain Verma v.CC, Delhi -1995 (76) E.L.T. 421 (T)]. Ld. Counsel also submitted that the imposition of penalty on Shri Basheer was contrary to the findings in the impugned order itself. The investigation had put up a case that Shri Basheer was having and NRI account and moneys drawn from that account had been utilised for the procurement of foreign currency. This contention had been rejected by the Commissioner in para 81 of his order. Ld. Counsel submitted that having done so, the ld. Commissioner should have held appellant to be innocent in the case.
5. Heard learned DR who explained that the punishment of Shri Basheer was based on the evidence of his role in packing the currency in a concealed manner in the handles of jute bags. He, therefore, submitted that the evidence relied upon by the Commissioner is the direct evidence of persons who carried out the concealment and the order is required to be upheld.6. The thrust of the allegation is that Muthu was the main person behind the attempted smuggling of foreign currency. However, he has not been apprehended or his relationship with Basheer established, as to how Basheer came by the foreign currency and handed over the currency for concealment in the handles of jute bags. His involvement has been held to be established by the statements of co-accused. In these statements, it has been baldly stated that Basheer and his friend brought the currency for concealment. There are no further details.
There is also no confirmation of the statements of the co-accused.
Basheer himself was not examined. Uncorroborated and vague statement of co-accused is not sufficient evidence to hold a person guilty.
7. In the above circumstances, it has to be held that the finding relating to Basheer's involvement does not have sufficient evidence to support it. The appeal of Basheer is, accordingly, allowed and the penalty imposed on him set aside.