TMI Blog2016 (6) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 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 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 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 by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a passenger or a member of a crew in his/her baggage under heading 9803 are restricted as per the 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 nit for 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 148.5 grams 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. 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, Deputy Commissioner of Customs (Airport) passed the order-in-Original dated 23.06.2012 and ordered:- (i) Absolute confiscation of the aforesaid one number of gold bangle totally weighing 148.5 grams valued at ₹ 4,19,661/-(Rupees four lakhs nighteen tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd others vs CC Air Chennai 2010 (252) ELT 02012(T-Mad). 4.4 That Hon ble High Court of Bombay in the case of UOI Vs Mohammed 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. that the said order of Bombay High Court was upheld by Hon ble Supreme court in its decision reported in 2010(253) ELT e83 (SC). It was prayed that the Order-in-Appeal be set aside, absolute confiscation and penalty be upheld or such 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 respondent is a Srilankan National and on 23.06.2012 she along with five ladies came to India 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 the bangle brought by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 one gold bangle only and that too was seized in spite of wearing 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 implicating any name as owner. That the department did not give any Show Cause Notice nor do they find the receiver. That this was 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 hearing was scheduled in this case on 02.09.2015 and 15.09.015 the representative of the respondent Shri. Ganesh, Advocate appeared for hearing on 02.09.2015 and submitted written submission reiterating the counter reply as above. 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-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 11. Government notes that in the impugned Order-in-Original the record of personal hearing reads as under : The Passenger Smt. Suvina appeared for the personal hearing before me on 10/07/2012. During the course of the hearing, the passenger has made a written submission stating that she has not authorized any one to appear before the adjudicating authority for personal hearing. She also stated that the original detention receipt is with the passenger Ms Dineshwari, who travelled along with her on that day i,e. 2306.2012; that she done the activity of carrying gold without applying her mind prayed for lenient view 11.1 There is nothing on record to show that the said submission has been made under pressure or duress. In fact it is undeniably a voluntary statement made by the respondent during the course of personal hearing granted in the interest of natural justice, clearly established the fact she was only a carrier and not the owner of the gold bangle weighing 148.5 grams and she did it for a financial consideration. Any contrary claim regarding ownership of the impugned goods made before Commissioner (Appeals) and in the counter reply to the Revision Application is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case 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 reports 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 on 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 held that carrier is not entitled to benefit of Section 125 of Customs Act, 1962 Government, therefore, holds that in the present case the gold imported by the passenger as a carrier is liable for absolute confiscation as rightly pealed by the Department. 13. Notwithstanding the above, Government further notes that the provision for re-export of baggage is available under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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