TMI Blog2016 (5) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... he ought to have approached the Customs and made the requisite declaration. Therefore, government upholds the Department’s contention that absolute confiscation is legally warranted. Whether passenger is a carrier of the impugned goods or not - Held that:- Government finds no merit in the contention of both the Commissioner (Appeals) and the respondent on the ground that the passenger is a carrier is not part of Show cause Notice and, therefore, cannot be raised at a later stage. The subsequent claim of the respondent that the gold of his roommates also belonged to him as they owed money to him is clearly an afterthought. He had already admitted in his voluntary statement that only part of the gold belonged to him and rest had been carried for this roommates for a monetary consideration. Government also notes that the statement recorded before the Customs officers is valid evidence. Government further finds that the provision for re-export of baggage is available under Section 80 of the Customs Act, 1962. However, this Section is applicable only to cases of bonfire baggage declared to Customs, which the applicant failed to do, thus the applicant is not eligible for re-export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and made to understand the provisions of the said Section. He agreed for the personal search to be conducted in presence of gazetted officer and witnesses. During the personal search nine bits of yellow coloured metal from his pants pocket was recovered which totally weighed 1000 grams and was suspected to be gold. The Government approved gold appraiser was called upon to examine the recovered gold in the presence of witnesses and the said passenger and on examine the yellow metal bits, he certified them as made of gold of 24 carat purity, totally weighing 1000 grams and appraised the total value of gold at ₹ 30,84000/- at the rate of ₹ 3084/- per gram on the date of seizure As shri Moinuddin, was not in possession of any valid permit/licence/documents issued by the competent authority for the licit import of the gold and he had attempted to smuggle the impugned gold by not declaring the same to costumes by way of concealments inside his pants pocket and walking through the green channel, the said gold totally weighing 100 grams was seized for further action under Section 110 of the act, ibid, read with foreign Trade (Development Regulations), act 1992. 2.1 The pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty @ 36.05 % in addition of the Redemption Fine. (ii) Imposed apenalty of ₹ 2,50,000/-(Two lakhs fifty thousand only) on Shri Moinuddin under Section 112 (a) (b) of the Customs Act, 1962 3. Being aggrieved by the said Order-in-Original, both shri Moinuddin and the Department filed Appeal before the commissioner of Customs, Chennai (Appeals-I) who decided the appeal vide common Order-in-Appeal no 349-350/2015 dated 20/06/2015. commissioner of Customs (Appeals-I) modified the impugned Order-in Original by reducing redemption fine to ₹ 6,00,000/-(Six lakhs only) from ₹ 12,50,000/-(Twelve lakhs fifty thousand only) and held the penalty to be fair. the Department s appeal for setting aside the impugned Order-in-Original and confiscating the goods absolutely as the passenger was not the genuine owner of the good was set aside on the ground that it was not alleged in the Show cause Notice that the passenger is a carrier and hence not entitled to redemption fine. 4. Being aggrieved byh the impugned Order-in-Appeal, the Department ha filed this revision application under Section 129DD of Customs Act,l 1962 before the Government on the following ground: 4.1 Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who stayed abroad for more than one year can bring gold jewellery (22 carat) to an extent of ₹ 1 lakh (female passenger) and to an extent of ₹ 50,000/- (male passenger) and the same can be cleared from customs without payment of duty. 4.2.3 That in the present case, the passenger did not declare the gold possessed by him under Section 77 of the Customs Act, 1962 and was not in possessed by him under Section 77 of the Customs Act, 1962 and was not in possession of foreign currency for the payment of duty and that the passenger has not fulfilled the conditions stipulated under Notification No. 12/2012 and Baggage Rules. That the passenger was ineligible to import the gold and accordingly the Order-In-appeal permitting the ineligible passenger to re-export the smuggled gold is incorrect in law. 4.3 That the decision of the appellate authority to allow the export of goods on payment of redemption fine is not acceptable as the passenger with an intention to smuggle did not declare the gold in his possession and mis-declared the same in the Customs declaration Card as `NIL` and attempted to smuggle the gold out of airport. In support of the contention, the following cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CA, of 1962 is admissible. The passenger retracted his admission and informed that he is the owner of the gold seized during the personal hearing. The retraction is not acceptable as the statement was recorded under Section 108 of CA 1962 on5.3.2014. whereas he retracted the statement belatedly only at the time of PH held on 21/01.2015 after the gap of 10 months in the case of P.B Nair C F Pvt. Ltd Vs. CC. Mumbai reported in 2015 (318) ELT 437(Tri Mum),CESTAT has held that retraction of statement under section 108 is a judicial proceeding and belated retractions of statements after about one and half years cannot take away the evidentiary value of original statement. 4.6 That the appellate authority has contended that the case laws relied by the department are distinguishable. That following case laws are relied upon by the applicant. * Hobble Tribunal vide order no 1980-1995/09 dated 24/12/2009 I the case of G.V Ramesh and other Vs CC (Air) Chennai reported 2010 (252) ELT 0212 *(T.Mad) wherein the Hon ble Tribunal has held that the impugned goods and foreign currency cannot be allowed to be redeemed by them on payment of fine and duty as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show that the statement recorded under Section 108 of the Act, admissible. 4.8 That in a recent judgement delivered by Hon ble High court of Delhi in the case of Ramkumar Vs Commissioner of customs decided on 16.01.2015 in Review petition No. 429 of 2014 in WP No. (C) No. 4536 of 2013, reported in 2015 (320) ELT 368 (Del) it was held that benefit of Section 125 of Customs Act, 1962 is not entitled as the applicant was mere carrier of goods and the same did not belong to him. 4.9 That re export of goods is covered in section 80 of the Customs Act, 1962 that as per the said act, where the baggage of the passenger contains any article which is dutiable or the import of which is prohibited and in respect which a true declaration has been made under the Section 77, the proper officer may, at the request of the passenger, detain such article for the purpose of being returned to him on his leaving India. That in this case, the passenger has not filed any declaration and hence the appellate authority s order to allow the re-export of the gold is not in order. 4.10 That the order of the appellate authority has the effect of making smuggling an attractive preposition, since the pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same to the Customs under Section 77 of the Act, ibid as required. The gold was recovered only upon the personal search of the respondent. In the statement of the respondent recorded under Section 108 of the respondent. In the statement of the respondent recorded under Section 108 of the Customs act, 19632, he inter-alia admitted that he was working in private firm in Kuwait for the past 7 years; that only 300 grams of gold bits belonged to him and rest of the quantity belonged to his four friends who were his roommates at Kuwait; that he carried the gold bits by keeping them in his pant pocket without declaring the same to Customs to evade Customs duty; that he knew that he was not an eligible passenger to import gold at the concessional rate of duty and he did not have money to pay Customs duty; that he did not know the address of the above said four persons in India; that is was agree amongst them that whenever his above said friends visits India, they would collect the gold at hid residence after paying him the service glances of ₹ 500/- per 100 grams; that he knew that bringing gold without valid documents and by not declaring the same to Customs was an offence; that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clared to the customs under section 77 of the Act and the passenger passed though the green channel. Even upon being questioned if he had anything to declare, he answered in the negative including before his personal search was conducted. However, upon his person search 1000 grams of gold bits were recovered of which he claimed only 300 grams. Belonged to him and rest he was carrying on behalf of others for a monetary consideration which he later claimed also belonged to him as the actual owners owed money to him. It is also uncontested that the passenger had also not fulfilled the conditions of notification no 12/2012-CUS dated 17.03.2012 and nor was he entitled to import the impugned gold under Rule 6 of the Baggage Rules (which allows import of 22 carat personal gold jewellery up to ₹ 50,000/- for male passengers). 11. Before dealing with the issue further government proceeds to examine as to whether the import of the impugned gold is prohibited or not. 11. Before dealing with the issue further Government proceeds to examine as the whether the import of the impugned gold is prohibited or not. 11.1 Prohibited goods have been defined in Section 2(33) of the customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion statement, the Department has contended that the passenger is nothing but a carrier. The commissioner (Appeals) on the other hand, has held that this was not alleged in the Show Cause Notice and also that part of the gold belonged to the respondent. there is no dispute about the fact that the respondent in his statement has clearly admitted that only 300 grams gold belonged to him and rest belonged to his roommates a Kuwait, that they would collect it from him in India after paying service charge of ₹ 5000/- per 100 grams. The fact that the passenger is not the owner of the goods has been clearly brought out in para 2 of the show cause Notice. Government finds no merit in the contention of both the Commissioner (Appeals) and the respondent that the ground that the passenger is a carrier is not part of Show cause Notice and, therefore, cannot be raised at a later stage. 14. Further, Government notes that Hon ble High Court of Bombay in its judgment dated 23-07-2009 in the case of UOI Vs Mohammed Aijaj ahmed (WP No. 1901/2003) reported as 2009 (244) ELT 49 (Bom.) has set aside the order of CESTAT ordering to allow redemption of gold and upheld the absolute confiscation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not eligible le for re-export of impugned goods. In similar circumstances, Central Government has denied re-export of goods in the case of Hemal K Shah 2012(275)ELT 266 (GOI). Further the Apex court in the case of CC Kolkata Vs Grand Prime LTD 2003 (155) ELT 417 (SC) has supported the view that the goods which are liable for confiscation cannot be allowed to be re-exported. There is force in Department s contention that the allowing to redeem the offending goods even when caught and then allow re-expoet makes smuggling an attractive proposition. Hence, the Government is of the view that the order of Commissioner (Appeals) allowing the request of the respondent for re-export of goods is not legal and proper and cannot be allowed. 17. Government also finds no force in the plea of the respondent that the confiscation of the impugned goods is not valid as any Show Cause Notice for confiscation of the goods is to be issued under Section 124 only and present notice mentions 111 (d) (I), as the Show Cause Notice clearly mentions in the beginning and in the concluding para that is is issued under Section 124 of the customs Act, 1962. 18. In view of the position explained above, Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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