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2020 (11) TMI 758 - CGOVT - CustomsSmuggling - Gold - Baggage Rules - Conspiracy - absolute confiscation - levy of penalty u/s Section 112(a) - HELD THAT:- At the outset the Government observes that the officers of AIU have acted impulsively, and somewhat prematurely the passenger Shri Sahubar Sathik Hithayadullah was intercepted as soon as he stepped out of the Aircraft, at the aerobridge. It is therefore clear that the passenger was prevented from filing a declaration as required under Section 77 of the Customs Act, 1962. As a plan/conspiracy was in existence, the officers having specific intelligence could have made the interceptions after the transfer of the gold near the lifts. Further, the seizure of the gold took place at the aerobridge and according to the mahazar, the Respondent has not received the gold from the passenger nor has he come into contact with him or the gold. The entire case on the respondent has originated from the statement given by Shri Sahubar Sathik Hithayadullah in which he has stated that he was to proceed to lift to handover the gold to the Respondent. To put it shortly, there is no tangible involvement of the Respondent leading to seizure of gold. The passenger with gold was intercepted at the aerobridge itself, before the entire conspiracy took place. The officers along with the passenger contacted the respondent and intercepted him at the lift. However, by then the gold was already taken into possession by the officers, the intended plan of smuggling the gold out of Airport as a part of conspiracy did not take place, as the plan has not been executed. As the gold was seized before the respondent came in the picture, the offence associated with the mens rea was not allowed to happen. The Respondent never came in contact with the gold. It is thus evident that the Respondent has not done anything in relation to the gold that was seized. The Respondent never came in touch with the gold at all, as it was seized before he came into the conspiracy, and therefore there was no cogent act of commission or omission by the Respondent, which rendered the goods liable for confiscation - The subsequent actions of unravelling the conspiracy and implicating the applicant did not take place and therefore there is no reason for invoking Section 112(a) of the Customs Act, 1962. Penalty - HELD THAT:- The Government holds that Section 112(a) cannot be invoked in the case and penalty is not imposable. The penalty imposed is therefore rightly set aside. The impugned Appellate order is therefore to be upheld - Revision Application is liable to be dismissed.
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