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Shri Zainuddin, Shri Chokkalingam Muruganandam, Shri Haji Mahamed & Commissioner of Customs, Hyderabad-II Versus Commissioner of Central Excise, Customs and Service Tax Hyderabad-ii, Sri Chokkalingam Muruganandam, Shri Haji Mohamed & Shri Zainuddin

2015 (11) TMI 32 - CESTAT BANGALORE

Confiscation of gold bars - Six bars recovered concealed in shoes and pant pockets - Foreign currency and Indian currency also found - Penalty imposed under Sections 112(a) and 114AA of Customs Act, 1962 - Revenue contends that passengers were intercepted after they crossed green channel thus claim of appellants that they have not crossed Customs barriers is not correct - Total quantity brought by them is much more than admissible quantity - Held That:- In absence of any challenge to Mahazar and .....

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es - Penalties imposed under Sections 112(a) and 114AA is harsh - Because of seizure of gold and confiscation thereafter it cannot be said short levy has taken place - Penalties set aside - Decided partially in favour of Revenue. - C/21873/2014-DB, C/21874/2014-DB, C/21875/2014-DB, C/22869/2014-DB, C/22868/2014-DB, C/22870/2014-DB - Final Order Nos. 21348 - 21353 / 2015 - Dated:- 16-7-2015 - Mrs. Archana Wadhwa, Judicial Member And Mr. B.S.V.Murthy, Technical Member For the Petitioner : Mr. A. G .....

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ere verified and it was found that column No. 6, in which the passengers are required to declare total value of the goods they carry, was blank. Thereafter search of the passengers was conducted and from each of the appellant, six gold bars weighing 01 Kg. each were recovered. According to the Order-in-Original, the gold bars were found concealed in shoes and pant pockets to avoid detection by the authorities. Some foreign currency and Indian currency were also found. On the ground that the gold .....

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iends and are doing business independently and men of means contrary to the statements recorded at the time of seizure. All of them filed Income Tax Returns and copy of the returns were also filed. Shri Haji Mohamed, the third appellant wanted to start a hotel project in Kumbakonam, Tamilnadu and for the purpose of investment for the hotel, they purchased gold bars to sell in India. The appellants were guided by website which was verified by the third appellant. According to the website, a passe .....

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to pay all the duty; the seizure was effected in the Customs hall and therefore, import was not complete at all; since they had not crossed the Customs barrier, there was no offence committed; it is preemptive seizure and the appellants relied upon case law holding that seizure cannot be effected before the goods cross the Customs barrier. It was submitted that the appellants parents were citizens of India and therefore, all the appellants were persons of Indian origin according to the Notifica .....

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d visited India and therefore they are not eligible for the benefit is wrong since their visit was less than 30 days in the case of two passengers; it was also observed by the Commissioner that the appellants did not show any evidence to show that they did not avail exemption earlier; according to the instructions issued, it was for the department to verify whether the appellant had availed the benefit or not; gold is not prohibited and therefore, they may be allowed to be re-exported on payment .....

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true picture of what happened. According to the Mahazar, the passengers were intercepted after they crossed the green channel. Therefore, the claim of the appellants that they have not crossed the Customs barriers is not at all correct. He also submits that even if it was accepted that the passengers are of Indian origin, yet, total quantity brought by them is much more than the admissible quantity and therefore confiscation is in order. When there is specific bar for importation of gold of not .....

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e claim of the appellants that they were intercepted in the Customs hall and had not crossed the Customs barriers and importation was not complete. In any case, it has been clearly brought on record that in the disembarkation slip/card filed by the appellants, they had mentioned value of the imported goods as nil. True declaration could have been made in the disembarkation card in which case, no case could have been made against the appellants at all. There would have been documentary evidence o .....

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nd it is not possible to take a contrary view. 6. Once it is held to be not importable, e gold becomes a prohibited item and therefore, the Commissioner has the power to confiscate the same absolutely. He has a choice to give an option to redeem on payment of fine but the claim of the appellants that he must release the gold on payment of fine is not correct legal position. The decision of the Commissioner of Customs (AIR) Chennai-I Vs. Samynathan Murugesan [2009 (247) E.L.T. 21] is appropriate. .....

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nal ought to have considered whether he could have carried the gold as part of his baggage as an eligible passenger - Goods imported in violation of Import (Control) Order, 1955 read with Section 3(i) of Import and Export Control Act, 1947 - Concealment weighted with the Commissioner to order absolute confiscation - Commissioner s order upheld - Section 111 of Customs Act, 1962. This judgement was upheld by the Hon ble Supreme Court, as reported in 2010 (254) ELT A15. In the circumstances and in .....

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rents or grand parents or grand grand parents are Indian residents have been produced before us. All of the three appellants are holders of Singapore passport and therefore unless evidence is produced to show that their parents or grand parents are Indian origin, it is not possible to accept the statement that they have to be treated as person of Indian origin. In any case, we have already observed that even if a person is of Indian origin, if the gold was not declared and was admittedly taken o .....

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s judgement was reaffirmed in the case of Om Prakash Bhatia Vs. Commissioner [2003 (155) E.L.T. 423 (S.C.)]. In the case of Garg Wollen Mills (P) Ltd. Vs. Addl. Collector of Customs New Delhi [1998 (104) E.L.T. 306], the Honble Supreme Court held that absolute confiscation of goods is justified when it is not a fit case to exercise discretion to give option to pay fine in lieu of confiscation. 8. In view of the above discussion, the decision of the Commissioner to confiscation the gold bars abs .....

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