TMI Blog1993 (3) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the order-in original No. SD/INT/AIU/89/92/AP `A /4322 (S/14-5-85/92AA) dated 10-4-1992 both passed by the Additional Collector of Customs, Airport, Bombay. 2. The facts of the cases are that both the appellants came as passengers from Dubai by Cathay Pacific Airlines flight on 30-3-1992,each carrying only one zipper hand bag as his baggage. It is alleged that both the appellants opted to walk through green channel for customs clearance and did not declare any dutiable or prohibited items before the customs officers. However, on screening of the bag, the officers noticed, the presence of metal objects and on detailed examination of the baggage, it was found that Shri V.P. Hameed (Appeal No. C/435/92-Bom) carried 35 gold bars weighi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have crossed the customs barrier alongwith the gold without seeing the warning. In the statements, they have also admitted that they have brought the gold given by one Mr. Kutty, who also gave the foreign currency for payment of duty and the gold bars after clearance were to be given to a person named by Mr. Kutty, who would be waiting outside the baggage hall. They also admitted that they had brought the gold for monetary consideration of Rs. 8000/- which they would be getting for carrying the gold. However, this statement has been retracted on the following day by the appellants and they have claimed the gold as belonging to them. They also produced the purchases receipts in respect of the said gold. It was pleaded that they are the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards the penalties, he pleaded that Section 112 of the Customs Act only has been cited for imposition of penalties. The specific sub-section namely 112(a) or (b) has not been cited in the order. Hence the penalty is not legally enforceable. In this context, he sought to rely on the decision of the Madras High Court reported in 1983 E.L.T. 322 (Madras), which has also been followed by the Tribunal in the case reported in 1991 (56) E.L.T. 64 (Tribunal). He also pleaded that in any case, the penalties imposed are excessive, even if they are taken as carriers of the gold and hence are not within their financial reach. 4. Shri Ravinder Jain, the ld. JDR, on the other hand, contended that as per Section 79 of the Customs Act, baggage rules a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be therefore construed to be the item of their bona fide baggage. He also stated that even the foreign currency was only recovered on personal search and hence they have been ordered confiscation. Since it is not belonging to them, it cannot be construed to be the bona fide baggage. As regards the penalties, the facts of the case are quite clear. Both the appellants have brought the gold and they have attempted to walk through green channel without declaring the gold and hence even non-mentioning of sub-section of Section 112 cannot be fatal to the order and the appellants have not been put to any prejudice, because of the absence of mentioning of sub-section of Section 112. 5. After hearing both the sides and on a perusal of the relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by Mr. Kutty. In view of the aforesaid position, non-declaration of the gold before the Customs has to be held as duly established. On this score itself the liability of gold to confiscation is to be upheld. Moreover, it is observed that the gold has been carried for one Mr. Kutty who has purchased the gold and also given the foreign currency for duty payment. Hence this cannot be construed to be a bona fide personal effect of both the appellants, even though they may be importers of the same. Even as per the notification fixing the effective rate of duty on such gold, the gold has to be imported as baggage and not otherwise. Baggage in the context of Section 76 read with the Baggage Rules would mean bona fides baggage restricted to pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e held that non-declaration of these foreign currency would render the currency liable to confiscation under Section 111(d) of the Customs Act. In this view of the matter, we order release of the foreign currency seized, to both the appellants. 7. As regards the penalty imposed on both the appellants, we are going by the initial statements given by both the appellants, it appears that they are only the carriers of the gold, who have carried the gold for monetary consideration which has to be cleared on payment of duty, penalties would therefore call for substantial reduction. We therefore reduce the personal penalty to Rs. 5000/- (Rupees Five thousand only) in each case. 8. Both the appeals are disposed of in the above terms. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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