1. The revision application filed against the Order of the Central Board of Excise and Customs, New Delhi'bearing No. Nil, dated 30th June, 1981 modifying the order of the Additional Collector of Customs (Preventive) Bombay dated 21-2-1981 and imposing penalty of Rs. 25,000/- under Section 114 of the Customs Act stands transferred to the Tribunal for being dealt with and disposed of as an appeal.
2. The appellant is a dealer in silver and scrutiny of the appellants accounts by the authorities revealed contravention of provisions Rule 4(1) to (5) of Specified Goods (Prevention of Illegel Export) Rules, 1969 and consequently as the appellant was found to have not complied with the provisions of Section 11L of the Customs Act, 1962, proceedings were instituted against the appellant as per law which ultimately culminated in the impugned order now appealed against.
3. In respect of sale of total quantity of 1496.298 kgs. of silver effected by the appellant between 22-11-1979 to 16-4-1980, precise particulars of the persons to whom the appellant sold were not available in the accounts of the appellant as enjoined on him by Section 11L of the Customs Act, read with Rule 4(1) to (5) of the Specified Goods (Prevention of Illegal Export) Rules, 1969.
4. Shri Mehta, the learned Advocate for the Appellant contended interalia : (i) Section 114 of the Act will not be applicable to the instant case and if at all any penalty is leviable under law, it is only Section 117 that will be applicable ; (ii) Since there is no evidence that the enquiry was conducted by a 'proper Officer' within the meaning of Section 11M of the Act read with Section 2(34) of the Act, the impugned order would stand vitiated ; (iii) In respect of sales on different dates between 22-11-1979 and 16-4-1980 only one show cause notice has been issued, whereas, as per law for every transaction of sale a separate show cause notice should have been issued ; (iv) The learned Counsel also cited a ruling of Gujarat High Court reported in 1985-Criminal Law Journal page 323 in the case of Union of India v. Abdul Kader Ali Gani Masmani and Ors. which I shall advert to at the relevant place.
5. The learned Junior Departmental Representative repelling the submissions of the appellant urged that Section 114 will be clearly applicable and Section 117 being a residual Clause will come into operation only when no specific penalty is elsewhere provided for contravention of the Act. It was further urged that the adjudicating authority in the instant case being the Additional Collector the submission of the appellant with reference to the 'proper Officer' is not relevant. The J.D.R. further submitted that even though the appellant has sold silver on various dates, since scrutiny of the accounts took place on a particular date, viz. 3rd May, 1980, different show cause notices need not be issued.
6. I have considered the submissions of the parties herein. Under Section 11M of the Act in respect of specified goods, such as silver as in this case, every person who sells the same, shall obtain on his copy of the sale or transfer voucher the signature and full postal address of the person to whom such sale or transfer is made and shall also take such other reasonable steps as may be specified by rules to satisfy himself as to the identity of the purchaser and if after an enquiry made by a proper Officer it is found that the purchaser or the transferee is not readily traceable it shall be presumed, unless the contrary is proved, that such goods have been illegally exported and the person who had sold such goods had been 'concerned in such illegal export.
7. Under Section 114 of the Act, any person who, in relation to any goods, does or omits to do any act which|act or omission would render such goods liable to confiscation under Section 113, or abets the doing or omission of such an act shall be liable to a penalty as specified therein.
8. Section 113 of the Act deals which confiscation of goods attempted to be improperly exported.
9. In the instant case, the appellant did not have precise particulars about the persons to whom he sold the silver "specified goods" within the meaning of Section 11Mof the Act. In such circumstances, the department is legally justified in invoking the statutory presumption under Section 11M in holding that the goods in question should have been illegally exported and the appellant should have been concerned in such illegal export. The appellant has not been able to satisfactorily rebut this statutory presumption against him. In such a circumstance, as a logical consequence the penal provision incorporated in Section 114 of the Act would automatically come into operation. When such a specific penal provision has been provided for, the residuary penal Clause in Section 117 of the Act will not be applicable. I, therefore, reject this submission of the learned Counsel for the appellant.
10. Regarding the contention of the appellant that impugned order would stand vitiated by reason fact that the enquiry was not conducted by the 'proper Officer' within the meaning of Section 11M read with Section 2(34) of the Act, I do not find any substance in this submission either. This is a case where as rightly contended by J.D.R. the adjudication order had been passed by the Additional Collector. When the adjudicating proceedings had been conducted by the Additional Collector himself, the plea that no "proper Officer" conducted the enquiry is totally devoid of any substance. The J.D.R. brings to my notice that general instructions have been issued by the Board as well as by the Collectors empowering Inspectors in the department to conduct investigations and enquiries in respect of contraventions of the provisions of the Act.
11. The ruling relied upon by the Counsel and referred to Supra is not relevant to the facts and circumstances of the case. In the ruling cited the question that primarily came up for consideration was with reference to the applicability of statutory presumption under Section 123 of the Act when seizure is not effected by a proper officer. In the instant case, when the adjudication has been conducted by the Additional Collector himself and penal liability is fastened on the appellant on the basis of statutory presumption incorporated in Section 11-M of the Act, the ratio of the ruling relied upon by the learned Counsel is not applicable at all.
12. The next submission of the learned Counsel regarding issuance of single show cause notice in respect of various transactions of sale resorted to by the appellant has to be mentioned to be rejected as legally unsustainable. If the argument of the learned Counsel were to be stretched to its logical extremity it would lead to anomalous situation where a person would be confronted with multiple number of show cause notices, multiple number of adjudication orders and consequently with multiple number of orders of penalty. Since on scrutiny of the appellant's accounts proceedings had been initiated by the authorities as per law, issuance of separate show cause notices in respect of each transaction of sale would not arise at all under the provisions of law.
13. At this stage, the learned Counsel submitted that he is not pressing the points he has urged and would merely pray for reduction of the penalty. It was urged that the appellant has never been involved in any offence in the past and this being the first time, the contravention may be viewed with leniency. I find from the records that the Board has pursuaded itself to take a lenient view and reduce the penalty from Rs. 50,000/- to Rs. 25,000/-. However, taking into consideration the background and facts and circumstances of the case, the status and antecedent of the appellant, I feel interests of justice would be met if the penalty is reduced to Rs. 20,000/- (Rupees twenty thousand only).
Except for the above modification, the appeal fails and the same is dismissed.