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Commissioner of Customs (Airport) , Chennai. Versus Smt. Dineshwari.

2016 (6) TMI 9 - GOVERNMENT OF INDIA

Confiscation in lieu of redemption fine and imposition of penalty - Smuggling of 87.5 gram of gold bangle - non-declaration at green channel - contravention of provisions of Section 77 of the Customs Act, 1962 - Held that:- any oral submission made before the adjudicating authority will be a material piece of evidence. In view of the specific admission made by the respondent before the adjudicating authority, government is inclined to hold that the respondent is a carrier of the impugned goods. .....

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nment further notes that the provision to Re-export of baggage is available under Section 80 ibid. However this Section is applicable only to cases of bonafide baggage declared to Customs, which the respondent failed to do and is not eligible for re-export of impugned goods. Government also finds no merit in the plea of the respondent that the gold was not required to be declared and can be cleared free of duty of the condition of re-export. Government notes that in terms of Section 77 anything .....

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for being apprehended by Customs, the passenger could have been successful in smuggling in the impugned goods into the country on behalf of another. Therefore, penalty has rightly been imposed upon the respondent under Section 112 ibid and Government finds no reason to interfere with the order of the Commissioner (Appeals) to the extent that penalty has been reduced to ₹ 10,000/- only. The re-export of the impugned goods allowed in this case by the Commissioner (Appeals) is therefore set- .....

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.2012 passed by Deputy Commissioner of Customs, (Airport), Chennai. 2. The brief facts of the case is that Smt Dineshwari, holder of Sri Lankan Flight No. UL N 0011663 dated 06/08//2003 arrived as a passenger from Colombo by 87.5 grams valued at ₹ 2,47,275/- and attempted to clear the same without declaring it to the customs. The said gold bangle was recovered after interception by the Custom Officers immediately after the exit point. Thus passenger contravened the provisions of Section 77 .....

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proper officer. Further, any dutiable or prohibited goods which are no included or are in excess of those included in the declaration made under Section 77 of the Customs Act, 1962 or any goods which do not correspond in respect of the value or in any other particular with the declaration made under Section 77 of the Customs Act, 1962, shall be liable for confiscation under Section 111(I) and (m) of the Customs Act, 1962. Further, in terms of Para 2.20 of chapter 2 of the foreign Trade Policy 2 .....

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t case, the passenger was only a carrier and not the owner of the gold and she did it of a financial consideration. Moreover, she was not entitled for the benefit of concessional rate of duty under Customs Notification No. 31/2003 being Sri Lankan national. As she had attempted to smuggle the said 87.5 gram of gold bangle without declaring it to Customs, she contravened the provisions of Section 77 of the Customs Act, 1962 and accordingly the goods in question were found liable for confiscation. .....

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ection (3) of the Foreign Trade (D&R) Act, 1992. (ii) Imposition of penalty of ₹ 25,000/- (Rupees twenty fine thousand only) on Smt Dineshwari under Section 112(a) of the Customs Act, 1962. 3. being aggrieved by the said Order-in-appeal No. 314 dated 28.02.13 set aside order of the adjudications authority confiscating absolutely the gold jewellery and allowed redemption of the same under Section 125 of the Customs Act,.1962 for the purpose of re-export on payment of Redemption fine of .....

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not discuss why the concession of re-export is being given in spite of the passenger action as a carrier for monetary consideration which is recorded in the record of personal hearing before the adjudicating authority held on 26/06/12 and adequately discusses on o-in- passed by the adjudicating authority. This fact of the passenger being a carrier has been ignored and not taken into consideration resulting in granting an unintended benefit to the smuggler passenger. 4.2 The adjudication authori .....

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ts Revision order no 401-406/12-CUS dated 11.10.2012 and 407-409/12-CUS dated 12.10.2012 pertaining to Chennai cases has upheld the absolute confiscation of gods brought by carrier passenger. 4.3 Absolute confiscation in such cases is upheld in the judgements of Hon ble Tribunal order No 1980/09 dated 24/12/09, in the case of G.V Ramesh and others Vs CC Air Chennai 2010 (252) ELT 0212 (T-Mad). 4.4 Hon ble high court of Bombay in the case of UOI Vs Mohamed Ahmed WP No. 1901/2003 decided on 23/07/ .....

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bsolute confiscation and penalty be upheld or such an order be passed as deemed fit. 5. A show Cause Notice was issued to the respondent under Section 129 DD of Customs Act, 1962 on 21.03.2014 and 01.08.2015 filed their counter reply as under:- 5.1 That the respondent is a Srilankan National and on 2306.2012 she along with five ladies came to India in order to attend a marriage at Pondicherry and landed at Chennai International Airport. 5.2. that the respondent was wearing the gold bangle. That .....

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laration is contravention of Section 77 of the Customs Act. And that he also found out the gold jewellery was not concealed in any ingenious manner and the gold jewellery was wearing in her hand by the respondent. That she requested to release the gold on redemption fine under Section 125 of the Customs Act and allowed her to take back the goods while going back to Srilanka. 5.6 That there was no offence registered in the name of respondent previously the personal penalty was reduced by the appe .....

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mission such as not declaring the ornaments worn on the person which are not at all concealed but are visible to the naked eye. That in this case the respondent was wearing the gold bangle in her hand. That it is not denied by the applicant. That there is no declaration required but the original authority had imposed redemption fine and penalty but the Commissioner (Appeals) had applied his mind and passed the order legally and properly. 5.8 That Section 125 of the Customs Act, 1962 is very much .....

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as recorded to prove their version. That the respondent was wearing on gold bangle only and that too was seized in spite of warning the same and was visible to naked eye. 5.9 That to confiscate the goods absolutely an officer of customs can forcibly obtain a statement from passenger implication any name as owner. That the department did not give any Show Cause Notice nor do they find the receiver. That this clearly shown it is all fictitious. 5.10. The respondent also places reliance on the foll .....

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t her counter reply submitted earlier in response to the Show Cause Notice dated 09.09.2013, may be treated as their written and oral submission in the instant case. Nobody from the department appeared for personal hearing on any of the scheduled dates mentioned above. 7.Government has carefully gone through the relevant case records and perused Order-in-Original and Order-in-Appeal. 8. Upon perusal of records, Government observes that the respondent was wearing the impugned gold bangle in her h .....

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the respondent attempted to single 87.5 grams of gold without declaring it to Customs, in contravention of Section 77 of the Customs Act, 1962. The impugned Order-in-Original ordered the absolute confiscation of the goods; imposed penalty of ₹ 25000/- under Section 112(a) of the Act, ibid. being aggrieved by the order, the respondent filed appeal before Commissioner (Appeals), who allowed re-export. on payment of redemption fine of ₹ 40,000/- and reduced the penalty to ₹ 10,000 .....

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re the commissioner (Appeals) the respondent claimed she is not a carrier and gold is not a prohibited item and requested for re-export as she is a Sri Lankan passport holder. The Commissioner (Appeals) accepted the request for redemption under Section 125 ibid and re-exports under Section 80 ibid holding that the respondent had attempted to smuggle the gold bangle in contravention of Section 77 but is was not concealed in any ingenious manner and is a Sri Lankan passport holder with no offence .....

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assenger stated that the gold bangle weighing g87.5 grams was handed over to her at Colombo by one Shri Satish who runs a goldsmith shop at Colombo; that the said gold bangle is to be handed over as one Shri Thangaraj outside Chennai Airport; that she had done this for a consideration as told by Shri Satish that the Air Ticket for travel would be arranged by him; that she had done this without applying her mind and prayed for lenient view 11.1 There is nothing on record to show that the said sub .....

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Satish. Any contrary claim regarding ownership of the impugned goods made before commissioner (Appeals) and in the counter reply to the Revision Application is clearly an afterthought. 11.2 Government opines that any oral submission made before the adjudicating authority will be a material piece of evidence. In view of the specific admission made by the respondent before the adjudicating authority, government is inclined to hold that the respondent is a carrier of the impugned goods. 12. In the .....

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tes that the absolute confiscation in such cases upheld in the judgements of Hon ble High Court of Madras in the case of Cc Air, Chennai Vs. Samynathan Murugeshan 2009 (247) ELT 21 (Mad.) The said order was upheld by Hon ble Supreme Court in the order dated 11.02.2010 reported as 2010 (254) ELT A015 (S.L) dismissing the petition for special leave to Appeal (civil) No. 22072 of 2009 filed by Samyanathan Murugesan. supreme Court passed the following order:- Applying the ratio of the judgment in th .....

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ase of Aiyakannu Vs. JC customs reported on 2012-110L-806-HC-MAD-Cus has also held as under:- Petitioner being a foreign (Sri Lankan) national is not entitled to import gold in terms of clause 3 of foreign Trade (Exemption from application of Rules in certain cases) order 1993/as it will apply to the passenger of Indian origin - attempt to smuggle 10 gold bars with Foreign marking wrapped in carbon paper by concealing in baggage justifies the order of absolute confiscation. 12.3 Government also .....

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rt in its decision reports as 2010 (253) ELT E83 (SC). Further the Hon ble High High Court of Chennai in the case of S. Faisal Khan vs. Joint Commissioner of Customs (Airport) Chennai 2010 (259) ELT 541 (Mad) upheld absolute confiscation of goods carried on behalf of someone else for a monetary consideration. In the case of Ram Kumar vs. commissioner of Customs 2010 (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 .....

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