TMI Blog2012 (8) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/. - Decided partly in favour of assessee. - F. No. 373/1/B/2012-RA - Order No. 336/2012-Cus - Dated:- 8-8-2012 - Shri D.P. Singh, Joint Secretary Shri Prakash K. Singhrani, for the Assessee. ORDER The revision application is filed by Mohd. Zia Ul Haque, Bangalore against the Order-in-Appeal No. 32/2011-(H-II)-Cus., dated 19-10-2011 passed by Commissioner of Customs (Appeals), Hyderabad with respect to Order-in-Original No. 51/2011-Cus., dated 31-5-2011 passed by the Additional Commissioner of Customs, Rajiv Gandhi International Airport, Hyderabad. 2. Brief facts of the case are that the applicant arrived at Rajiv Gandhi International Airport, Hyderabad on 23-12-2009 from Dubai who was intercepted at exit gate by the Customs Officers. During personal search of passenger and examination of his baggage gold ornaments weighing to 2264 gms valued at ₹ 30,96,444/- were recovered along with mobile phone valued at ₹ 30,000/- and laptop H.P. Pavilion valued at ₹ 40,000/-. After following the due process of law, the adjudicating authority confiscated absolutely the said gold ornaments under Section 111(a)(l)(m) of Customs Act, 1962. The mobile phone an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eased continuously for a number of years on payment of redemption fine and cited the following case laws in his defence: (a) V.P. Hameed v. Collector of Customs, Bombay [1994 (73) E.L.T. 425]. (b) Kadar Hydin v. Commissioner of Customs (Preventive), West Bengal [2001 (136) E.L.T. 758]. (c) Ashraf P. Perambil v. Commissioner of Customs (Airport), Chennai [2007 (213) E.L.T. 555]. (d) Sapna Sanjeev Kohli v. Commissioner of Customs, Airport, Mumbai [2008 (230) E.L.T. 305]. 4.5 The adjudicating authority failed to appreciate that my client imported the gold jewellery under a wrongly harboured bona fide belief and even through there are clearcut instructions from the C.B.E. C. vide letter F. No. 495/3/94-Cus. VI, dated 2-3-1994 that ownership is not the criterion for import of gold and even otherwise the gold receipt were in the name of my client, the adjudicating authority proceeded to make this an issue in the Para 34 of the adjudication order and confiscated the gold jewellery absolutely. 4.6 The adjudicating authority failed to appreciate that the term restricted is not used anywhere in the Sections 11, 111 and 113 of the Customs Act, 1962 and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it follows that the prohibition relates to goods which cannot be imported by any one, such as arms, ammunition, addictive substance viz. drugs. The intention behind the provisions of Section 125 is clear that import of such goods under any circumstances would cause danger to the health, welfare or morals of people as a whole. This would not apply to a case where import/export of goods is permitted subject to certain conditions or a certain category of persons and which are ordered to be confiscated for the reason that the condition has not been complied with. In such a situation, the release of such goods confiscated would not cause any danger or detriment to public health. Admittedly, import of gold is permitted in case of certain category of persons, subject to certain conditions in terms of Notification No. 117/92-Cus. as amended, therefore, it would not fall under the prohibited category as envisaged under the said provisions. The above view is also supported by Hon ble High Court of Calcutta s decision in the case of Commissioner of Customs (Preventive), West Bengal v. India Sales International reported in 2009 (241) E.L.T. 182 (Cal.) Hon ble High Court while deciding whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 on behalf of the applicant who reiterated the grounds of revision application. 6. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 7. On perusal of records, Government notes that gold jewellery imported by an eligible passenger applicant in excess of prescribed limit and in commercial quantity does not constitute bona fide baggage in terms of Section 79 of Customs Act, 1962. The passenger had concealed the said jewellery/other goods and did not declare to Customs. As such it has been imported in violation of provisions of Sections 77, 79 and 11 of Customs Act, 1962 read with provisions of Foreign Trade Policy 2009-2014 and Section 3(3) of Foreign Trade (Development Regulation) Act, 1992. Therefore order for confiscation of said goods under Section 111 of Customs Act, 1962 and imposition of penalty under 112 ibid cannot be assailed. 8. Applicant has mainly challenged the order of absolute confiscation of gold jewellery and for not condoning the delay of 22 days in filing appeal. In this regard, Government notes that Hon ble Supreme Court in the case of Collector Land Acquisition Anantnag O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he instant case, the passenger is neither a habitual offender nor carrying the said goods for somebody else. He is the owner of the goods and concealment was not is an ingenious manner. There is a merit in the pleading of applicant that goods should be allowed to be redeemed on payment of redemption fine and therefore said plea is acceptable. 8.3 As regards, the pleading to release the laptop unconditionally, Government finds that one laptop computer is allowed to be imported duty free by every passenger in terms of Notification No. 11/2004-Cus., dated 8-1-2004. So there is no case for its confiscation. Government therefore set aside the confiscation of said laptop computer and allows its duty free clearance. The confiscation of other mobiles/I-Phone is upheld. However, combined redemption fine in respect of mobiles/I-phone is modified to ₹ 6,000/. 9. In view of above discussions, Government allows the redemption of said gold jewellery on payment of redemption fine of ₹ 7,50,000/- (Rupees seven lakhs and fifty thousand only) in lieu of confiscation under Section 125 of Customs Act, 1962. Keeping in view the overall circumstances of the case, the penalty under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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