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2016 (5) TMI 1114 - GOVERNMENT OF INDIA

2016 (5) TMI 1114 - GOVERNMENT OF INDIA - TMI - Confiscation of goods absolutely - Non-entitlement to redemption fine - Seizure of smuggled 1000 gms imported gold - walked through the green channel at the airport without made declaration - Held that:- since the respondent was not eligible to import gold and that too undeclared and in a substantial quantity, the same cannot be treated as bona fide baggage in terms of section 79. The said gold is imported in violation of the Foreign trade Policy; .....

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old or contraband its, he answered in the negative had the applicant desired to import the gold as an eligible passenger, he ought to have approached the Customs and made the requisite declaration. Therefore, government upholds the Departmentís 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 groun .....

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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 of impugned goods. Therefore, in view of various decisions the order of Commissioner (Appeals) allowing the request of the respondent for re-export of goods is no .....

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g re-export of the impugned goods on payment of redemption fine. - Decided in favour of revenue - F. No. 380/25/B/15/RA - Order No. 01/2016-CUS - Dated:- 22-1-2016 - Ms. Rimjhim Prasad, Joint Secretary ORDER This revision application is filed by the Commissioner of Customs Chennai-I (hereinafter referred to as the Department) against the Order-in-Appeal No.3498350/2015 dated 29/06/2015 passed by Commissioner of customs, Chennai in the W.P. no 24230 of 2015 filed by the respondent directed that .....

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lking through green channel for the exit with his one hand bag and two checked-in baggage, after filling up the value of the goods carried by him as Nil in his Customs disembarkation card. The said passenger was asked specific as to whether he was carrying any gold/contraband goods either in his baggage or on his person to which he replied in negative. Upon noticing that the passenger became nervous, a detailed examination of his two checked-in baggages and one hand bag was conducted, in the pre .....

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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 i .....

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ly after the seizure, under section 108 of the Customs Act, 1962 inter-alia stated; that he was working in a private firm in Kuwait of 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 bit by keeping it in his pants 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 .....

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Moinuddin was guilty of an offence punishable under Sections 132 & 135 of the act, ibid he was placed under arrest on 05/03/2014 by the customs officer and Shri Moinuddin vide his letter dated 05/03/2014 intimated that he was on in the position to avail the bail conditions as offered by the Customs officer and opted of judicial remand and was subsequently granted bail by the judicial Magistrate. a show cause notice under Section 124 of the Customs Act, 1962 was issued to Shri Moinuddin, for .....

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valued at ₹ 25,72,280/- (International price of gold) was confiscated under Section 111 (d) & (I) of the Customs Act, 1962 with an option to redeem the same for re-export on payment of fine of ₹ 12,50,000/- under Section 125 of the Act, ibid or if option to redeem for the home consumption to be opted on payment of duty @ 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) & .....

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o 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 t .....

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etals from his pant pocket totally weighing 1000 gms which ware suspected to be gold. That the Government of India approved gold appraiser certified the recovered 9 nos yellow colored metal to be gold of 24 carat purity, totally weighing 1000 grams and appraised the value at ₹ 30,84,000/- at the rate of ₹ 3084/- per gram that the gold was confiscated and the statement was recorded from the passenger under Section 108 of the customs Act, 1962. That in the said statement, the passenger .....

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g aspects has given option to redeem the gold on payment of redemption fine of ₹ 6,00,000/- and penalty of ₹ 2,50,000/- for re-export. 4.2.1 That the eligibility of a passenger to clear the gold imported by him is covered under Notification no 12/2012-Cus dated 17/03/2012. That the said notification states that the passenger of Indian origin or a passenger holding a valid Indian Passport issued under the Passport Act, 1967 who is coming to India after a period of stay not less than s .....

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tent 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 stipulat .....

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rd as NIL and attempted to smuggle the gold out of airport. In support of the contention, the following case laws are relied upon:- * Hon ble Apex Court in the case of Om Prakash Bhatia Vs commissioner of Customs reported in 2003 (155) ELT 423 (SC) has held that if there is any prohibition of import or export of goods under the Act or any other law subject to certain conditions, it would be considered to be prohibited goods and if the conditions prescribed are not complied with is would be consi .....

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tion 108 of customs Act, 1962 has stated that the gold weighing 300 grams only is owned by him and the balance gold weighing 700 grams is owned by his roommates and that he carried the gold for monetary consideration of ₹ 5,000/- per 100 grams. That that fact that the passenger is not the owner of the good have been covered in para 2 of the show cause Notice. That the passenger is also a carried of smuggled gold. 4.5 The fact of the case and facts in the case laws relied upon by the depart .....

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id not belong to him The passenger is a carrier, who smuggled gold and he admitted in his statement in his statement that the seized gold belong to his roommates. 3. Faisal Khan Vs Joint Commissioner The statement recorded under Section 108 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. where .....

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y 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 the same do not belong to them but to someone else. The case law is squarely applicable to th .....

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lute confiscation of gold, as the gold did not belong to the passenger, who acted as carrier of gold. The said order of Bombay High court was upheld by Hon ble Supreme Court in its decision reported in 2010 (253) ELT E-83 (SC). Appellate Authority in para 7(ii) (b) of the Order-In-Appeal has concluded that only 300 grams of gold our of 1000 grams seized belong to the passenger hence the above case law referred by the department is not a different one from the present case * In the case of S. Fai .....

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s held to be acceptable and cannot be brushed aside an there is no recoded to show that the statement o the petitioner saws recorded under duress/pressure and the same was not voluntary. It is settled legal proposition that statement recorded under Section 108 of the act, is admissible unlike a statement recorded by a Police Officer. 4.7 That the appellate authority vide para 7(ii) © has contended that the facts on the above case are totally different. That in the present case, the passenge .....

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d 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 re .....

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the benefit of redeeming the offending goods even when caught by Customs which totally works against deterrence. 5. A show cause notice was issued to respondent under Section 129 DD of the Customs Act, 1962 to enable the respondent to file their counter reply. the respondent vide reply received on 31.08.2015 submitted that grounds raised by the Revision Applicant are not maintainable since the Oder-in-Appeal speaks for itself and an opportunity for hearing be given. Meanwhile, respondent filed .....

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e revisionary Authority and upon hearing them, Revisionary Authority would pass the order within eight weeks of receiving the order. 6. In compliance of Hon ble High Court s Order, personal hearing was scheduled in this case on 18.12.2015 6.1 Shri T. Chezhiyan, advocate, appeared on behalf of the respondent and made written submission mainly stating that a new ground cannot be involved in the revision stage beyond the show cause Notice. The grounds mentioned in Show Cause Notice for confiscating .....

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n-Original Order-in-Appeal and order of the Hon ble High Court dated 31.08/.2015. 8. On perusals of the records, Government observes that is is an undisputed fact that respondent imported impugned gold bits weighing 1000 grams and attempted to walk through green channel to smuggle it out by way of concealment, by keeping it inside his pant pocket and did not declare the same to the Customs under Section 77 of the Act, ibid as required. The gold was recovered only upon the personal search of the .....

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e 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 do .....

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addition to the redemption fine. a personal penalty of ₹ 2,50,000 under Section 112(a) & (b) ibid was also imposed. An appeal was filed against the Order-in-Original before commissioner of Customs, Chennai (Appeals-I) by the respondent as well as the Department. While the Order-in-Appeal rejected Department appeal, it allowed re-export of the impugned gold on reduced redemption fine of ₹ 6,00,000/- under Section 125 ibid 1962 and upheld the penalty of ₹ 2,50,000/- imposed .....

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n record that the passenger who is not eligible to import gold, walked through the green channel at the Airport and had he not been intercepted he would have walked away with the impugned good without declaring the same to Custom. The main contortion of the Department is that the passenger has accepted that he was carrying the gold for monetary consideration and had obviously concealed the gold and the same had not been declared in the customs declaration card. The passenger has also not fulfill .....

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ion 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 u .....

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oceeds 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 Act, 1962 as under: 2(33) - Definitions - Prohibited goods means any goods the import or export of which is subject to any prohibition under this act or another law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been .....

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ase of Samynathan Murugesasn Vs Commissioner 2010 (254) ELT a15 SC, the Hon ble Supreme Court has held that as the passenger did not fulfil the eligibility criteria, is makes the imported gold prohibited goods 11.3 since the respondent was not eligible to import gold and that too undeclared and in a substantial quantity, the same cannot be treated as bona fide baggage in terms of section 79. The said gold is imported in violation of the Foreign trade Policy; provisions of section 3(3) and 11(1) .....

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n When questioned by officers whether he has any gold or contraband its, he answered in the negative had the applicant desired to import the gold as an eligible passenger, 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 keeping in view that facts and circumstances of the case. 13. Another issue of contention in this regard is whether passenger is a carrier of the .....

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t 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 .....

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. Joint commissioner of customs (Airport) Chennai 2010 (259) ELT 541 (Mad) upheld absolute confiscation of goods carried on behlf on someone else for a monetary consideration. In the case of Ram Kumar Vs. commissioner of customs 2015 (320) ELT 368 (Del) also the Hon ble High Court of Delhi has held that carrier is not entitled to benefit of Section 125 of Customs Act, 1962 Government, therefore, holds that ever the gold imported by a passenger as carrier is liab le for absolute confiscation as p .....

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eme court has held in the case of Surjeet singh chhabera Vs. Union of India 1997(89) ELT 646 (SC) that statement made before Customs officers though retracted within six days is an admission and binding since Customs officers are no police officers under section 108 of Customs Act 1962. A similar view has been taken b the Apex court in Nares J. Sukhawani Vs. Union of India 1996(83) ELT 258(SC) holding that statement before a Customs officer under Section 108 of the Customs Act 1962 is material p .....

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