TMI Blog2016 (6) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 imported by a passenger is required to be declared to Customs and is chargeable to duty above the passenger is required to be declared to Customs and is chargeable to duty above the specified limits. Further gold and gold jewellery can be imported by only eligible passengers subject to fulfillment of conditions thereof. Government finds that the passenger was a Sri Lankan passport holder not eligible to import the impugned goods and the same were also not declared to the Customs. But 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.20 of Chapter 2 of the Foreign Trade Policy 2009-14, bonafide household goods and personal effects may be imported as part of passenger baggage as per limits, terms and conditions there of specified in the Baggage Rules, 1998. Further, all dutiable articles imported by a passenger of a member of a crew in his/ her baggage under heading 9803 are restricted as per ITC-HS 2011-12 read with Rule 3(1)(b) of the Foreign Trade (Exemption for Application of Rules in certain cases) Order, 1993 and Rule 3 of the Baggage Rules, 1998. 2.2 In the instant case, the passenger was only a carrier and not the owner of the gold and she did it for the financial consideration. Moreover, she was not entitled for the benefit of concessional rate of duty under Customs NOtfn. No. 31/2003 being Sri Lankan national. As she had attempted to smuggle the said 148 grams of gold bangles 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. The passenger was also found liable for penal action under section 112 of the Customs Act, 1962 for the offence committed by her. 2.3 Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held the absolute confiscation of goods brought by carrier passenger. 4.3 Absolute confiscation in such cases in upheld in the judgements of Hon'ble Tribunal order No. 1980-1995/09 dated 24/12/09, in the case of G.V Ramesh and others Vs CC Chennai 2010 (252) ELT 0212(T-Mad). 4.4 Hon'ble High Court of Bombay in the case UOI Vs Mohamed Aijaj Ahmed WP No 1901/2003 decided on 23/07/2009 reported in 2009(244) ELT 49(Bom) has set aside the order of CESTAT allowing redemption of gold and upheld the order passed by Commissioner of Customs ordering absolute confiscation of gold. In this case the gold did not belong to the passenger Mr. Mohamed Aijaj 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 E83(SC). In view of the above, it is prayed that the Order-in-Appeal be set aside, absolute 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 and on 21.03.2014 and 01.08.2015 who filed their counter reply as under:- 5.1. That the respondent is a Srilankan Notion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such goods have been seized. That the legislature has clearly stated to give option to redeem the goods either to owner or the person whom the goods seized in lieu of confiscation. That now were in that Act mentioned that the goods should be absolutely confiscated if the goods brought by other than the owner. That no statement under Section 108 of the Customs Act was recorded to prove their version. That the respondent was wearing six gold bangles only than the owner. That no statement under Section 108 of the Customs Act was recorded to prove their version. That the respondent was wearing six gold bangles only and that too were seized in spite wearing the same and were visible to naked eye. 5.9. That to confiscate the goods absolutely an officer customs can forcibly obtain a statement from passenger implicating 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 following case laws:- * Yakub Ibrahim Yusuf Vs Commissioner of Customs (Mum) 2011(263) ELT 685 * Revision Application no. 373/22/b/2009-RA Cus 6. Personal heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld bangles is contravention of Section 77 but is was not concealed in any ingenious manner and is a Sri Lankan passport with no offence registered previously. In the counter to the Revision Application filed by the applicant it is once again claimed that the bangles were personal effects covered under Appendix E of Rule 7 of Baggage Rules and can be cleared free duty on the condition of re-export. 11. Government notes that in the impugned Order-in-Original the record of personal hearing reads as under: The passenger Smt Saraswathi appeared for the personal hearing before me on 26/06/2012. During the course of the hearing, the passenger stated that six gold bangles totally weighing 148 grams was handed over to her at Colombo by one Shri Satish runs a goldsmith shop at Colombo; that the said gold bangle is to be handed over to 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 he said submission has been made under any pressure or dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 in the case 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 markings wrapped in carbon paper by concealing in baggage justifies the order of absolute confiscation. 12.3 Government also notes that Hon'ble High Court of Bombay in its judgement 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 of gold ordered by commissioner of Customs. In this the gold did not belong to passenger Mr.Mohammad Aijaj ahamed who acted as carrier of gold. the said order of Bombay High Court was upheld by Hon'ble Supreme Court in its decision reported as 2010 (253) ELT E83 (S.C). Further the Hon'ble High Court of Chennai in the case of S. Faisal khan Vs Joint Commissioner of Customs (Airport) Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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