TMI Blog2003 (6) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... he DRI officers on the basis of information that a passenger by name L. Hameed arriving by Sri Lankan Airlines Flight UL 121 from Colombo at Chennai Airport on 25-11-2001 was bringing electronic goods in trade quantities kept watch for the arrival of the said passenger. The passenger on arrival was identified and was found standing in front of the Customs Table No. 14 where he was waiting for clearance of the baggage after making required declaration to the Customs authorities. He made declaration to the Customs indicating that he was in possession of 6 baggage containing 60 Cellphones valued at Rs. 1,50,000/- and 120 watches valued at Rs. 3,000/- and baggage No. tag UL 272854 and four checked in baggage and two hand baggage. On enquiry in the presence of independent witness the passenger replied that he brought electronic goods of foreign origin of the above noted value contained in six baggage and further explained that out of the six baggage three baggage - i.e. two checked in baggage and one hand baggage were brought by another passenger by name A. Hakkim in the same flight and he brought the other baggage namely two checked in baggage and one hand baggage. He further informed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of goods on the basis of a request made by the owner of the goods is outside the purview of the adjudication proceedings in terms of Sections 111, 112 and 125 of the Customs Act, 1962. He has submitted that the appellant has come from Colombo along with six baggage and after collecting the baggage he opted for Red Channel and he was allotted Customs Table No. 14. There, the DRI officers intercepted him on the suspicion that he was carrying electronic goods and that he was likely to misdeclare the same. The DRI officers also seized a baggage declaration made by the appellant, a copy of which is filed at page 6 of the paper book. He has also referred to the statement obtained from the appellant and submitted that his intention was to pay duty, (though he misdeclared) on spotting the DRI officers, the appellant wanted to pay duty. He also submitted that Customs Clearance card cannot be equated with declaration under Section 77 of the Act as it contains different columns and hence it cannot be said that the appellant has made a misdeclaration. He has pleaded that in terms of Section 141 of the Customs Act, 1962, all conveyances and goods in a customs area shall, for the purpose of en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted by the department, it comes to Rs. 24,21,700/- as detailed under para 3 of the impugned order. He has also invited our attention to the judgment of the Hon'ble Supreme Court in the case of CC, Bombay v. Elephanta Oil and Industries Ltd. reported in 2003 (152) E.L.T. 257 (S.C.) wherein the Apex Court has ruled that confiscation of the goods and thereafter permitting the importer to re-export the same would not mean that penalty under Section 112 of the Customs Act, 1962 cannot be levied. It was also held therein that power to levy penalty under Section 112 ibid for importation of the goods is different from the power of confiscation of goods under Section 125 ibid and giving an option to pay in lieu of confiscation such fine as the authority thinks fit. He, therefore, prayed upholding the impugned order and dismissal of the appeal. 6. We have considered the submissions made by both the sides and gone through the case records and perused the case laws cited by both the sides. We observe that in this case, on his arrival at the Chennai Airport, appellant made a declaration to the effect that he has brought electronic goods valued at Rs. 1,53,000/- whereas according to his ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le the goods by declaring only a small portion of the same. The appellant was indulging in smuggling activities and the goods brought by him were for trading purpose in contravention of law is thus established beyond doubt by evidence on record. Therefore, the plea of the appellant that he was not given an opportunity to clear the goods on payment of duty cannot be accepted, given the background of this case and more particularly in view of the fact that he has made an initial declaration declaring that he had brought goods valued only Rs. 1,53,000/- thus making his intention clear that he wanted to smuggle the goods brought by him while coming from Colombo and hence merely because he has opted the Red Channel does not mean that he wanted to pay duty and come out clean. The learned Counsel has relied upon the decision of the East Regional Bench of the Tribunal in the case of Umesh Kumar Singh v. CC, reported in 1992 (62) E.L.T. 655. In that case a passenger had stayed abroad and brought goods of foreign origin in commercial quantities and he opted Red Channel and it was held that the provisions of Section 111 was not contravened because the passenger opted Red Channel and wanted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in 2003 (153) E.L.T. 226. In para 8 of the said judgment it is held that it is open to the adjudicating authority to impose redemption fine as well as penalty even when permission is granted for re-exporting goods. In the present case, prayer has been seriously made by the appellant for permission to re-export the goods. We note that the total value of the goods including watches brought by the appellant is Rs. 24,21,700/-. We also take note of the fact that the appellant was languishing in jail as a COFEPOSA detenu for some time. Considering all these factors, we are inclined to think that redemption fine of Rs. 15,00,000/- on the goods valued at Rs. 24,21,700/- is excessive and interests of justice will be served if the redemption fine on the goods is reduced from Rs. 15,00,000/- to Rs. 2,40,000/- (Rupees Two lakhs Forty thousand) and we order accordingly. In the facts and circumstances of the case, we are inclined to grant permission to re-export all the goods including the watches which have been absolutely confiscated, on payment of redemption fine and penalty as fixed in this order. The appellant is also at liberty to clear all the goods on payment of appropriate duty of cu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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