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2016 (6) TMI 10 - GOVERNMENT OF INDIA

2016 (6) TMI 10 - GOVERNMENT OF INDIA - tmi - Confiscation in lieu of redemption fine and imposition of penalty - Smuggling of 148 grams of gold bangles - 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 .....

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plicable to the instant case.

Government 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. Governme .....

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ame 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 the Commissioner (Appeals) to the extent that penalty has been reduced to ₹ 20,000/- only. The re-export of the impugned goods allowed in this case b .....

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als), with respect to Order-in-Original No.O.s.343/2012-Air(AIU) dated 23.06.2012 passed by Deputy commissioner of Customs, (Airport), Chennai. 2. The brief facts of the case is that respondent Smt. Saraswathi, holder of Sri Lankan Passport No. N 4572822 dated 18/06/2012 arrived as a passenger from Colombo by Flight No. UL 123 on 23.06.2012 and brought six numbers of gold bangles totally weighing 148 grams valued at Rs. 4,18,248/- by wearing and attempted to clear the same without declaring it t .....

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ne else for some monetary gains. 2.1 In terms of Section 77 of the Customs Act, 1962, the owner of any baggage shall for the purpose of the clearing it make a declaration of its contents to the proper officer. Further, any dutiable or prohibited goods which are not included or are in excess of those included in the declaration made under Section 77 of the Customs Act, excess of those included in the declaration made under Section 77 of the Customs Act, 1962 or nay goods which do not correspond i .....

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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. .....

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d 23.06.2012 and ordered:- (i) Absolute confiscation of the aforesaid six numbers of gold bangles totally weighing 148 grams valued at ₹ 4,18,248/-(Rupees four lakhs eighteen thousand two hundred forty eight only) under Section 111(d), (I) and (m) of the Customs Act, 1962 read with Section (3) of the Foreign Trade (D&R) Act, 1992. (ii) Imposition of penalty of ₹ 42,000/- (Rupees forty two thousand only). on Smt. Saraswathi under Section 112(a) of the Customs Act, 1962. 3. Being a .....

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t has field this revision application under Section 129 DD of Customs Act, 1962 before Government of the following grounds: 4.1 The order of Commissioner (Appeals) does not discuss why the concession of re-export is being given in spite of the passenger acting as a carrier for monetary consideration which is recorded in the record of personal hearing before the adjudicating authority held on 26/06/12 an adequately discusses in Order-in-Original passed by the adjudicating authority. This fact of .....

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/2011 and 481/11 dated 29/7/2011. Finally, the absolute confiscation was also upheld by government in these cases vide GOI order No 352-354/12 dated 28/8/2012. Similarly, Government in its 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 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 .....

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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 Notional .....

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earing the gold bangles and which can be cleared free of duty on the condition of re-export as per Rule 7 of Appendix 'E' of the Baggage Rules. 5.5. That the appellate authority found that the mere non declaration 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 bangles on redemption fine under S .....

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he order of absolute confiscation by stating that the non-declaration which entails confiscation under Section 111(I) should be conscious and International non-declaration and would not take within its ambit more unintentional omission 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 bangles in her hand. That it is not denied by the applicant. That there is no declaration .....

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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 .....

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vision Application no. 373/22/b/2009-RA Cus 6. Personal hearing was scheduled in this case on 04.08.2015, 02.09.2015 and 15.09.2015. The representative of the respondent Shri Ganesh, Advocate appeared for hearing on 2.09.2015 and submitted written submission. 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 .....

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hat she had brought the impugned goods on behalf of somebody else for some monetary consideration. As the respondent attempted to smuggle 148 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 Rs. 42,000/- under Section 112(a) of the Act, ibid. Being aggrieved by the order, the respondent filed appeal before commissioner (Appeals), who allowed re- .....

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enalty imposed by original authority be upheld. 10. Government further observes that before 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-export under Section 80 ibid holding that the respondent had attempted to smuggle the gold bangles is contravention of Section 77 but is was n .....

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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 a .....

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would be arranged by Shri 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 .....

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nstant case. 12.1 Government notes 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 A15 (S.L) dismissing the petition for special leave to Appeal (civil) No. 22072 of 2009 filed by Samyanathan Murugessan. Supreme Court Passed the following order:- &q .....

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r judgement dated 02-03.2012 in WP No. 21086/2002 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 just .....

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he 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) 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 2015 (320) ELT (Del) also the Hon'ble High Court of Delhi has .....

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dent failed to do and i s not eligible 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 goods which are liable for confiscation cannot be allowed to be re-exported. Hence, Government is of the view that the order of the Commissioner (Appeals) allowing re-export of i .....

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