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2016 (6) TMI 191 - GOVERNMENT OF INDIA

2016 (6) TMI 191 - GOVERNMENT OF INDIA - TMI - Smuggling of 148.5 grams of gold bangles - non-declaration at green channel - contravention of provisions of Section 77 of the Customs Act, 1962 - Confiscation in lieu of redemption fine and imposition of penalty - 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 t .....

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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 imported by a passenger .....

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nto 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 Commissioner (Appeals) is therefore set-aside and the impugned Order-in-Original ordering absolute confiscation is restored. - Decided partly in favour .....

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he case are that Smt. Suvina, (hereinafter referred as the Respondent) holder of Sri Lankan Passport No. 3121397 dated 05.03.2012 arrived as a passenger from by flight No. UL 123 on 23.06.2012 and brought one number of gold bangle weighing 148.5 grams valued at ₹ 4,19661/- 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 provision .....

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ntents 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, 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 .....

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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 lia .....

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e 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. Suvina under Section 112(a) of the Customs Act, 1962. 3. Being aggrieved by the said Order-in-Original, the respondent filed appeal before Commissioner (Appeals) who vide his Order-in-Appeal No. C.Cus No. 586/2013 dated 04.04.2013 sets aside order of the adjudicating authority confiscating absolutely the gold jewellery and all .....

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ing 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 10.07.2012 and adequately discusses in Order-in-Original passed by the adjudicating authority. That the fact of the passenger being a carrier has been ignored and not taken into considerations resulting in granting an unintended benefit to the smuggler passenger. 4.2 That the adjudication authority at Chennai Airport in i .....

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12-CUS dated 11.10.2012 and 407-409/12-Cus dated 12.10.2012 pertaining to Chennai cases has also upheld the absolute confiscation of goods brought by carrier passenger. 4.3 that in absolute confiscation is upheld in the judgements of Hon ble Tribunal order No 1980/09 dated 24.12.2009, in the case of G.V Ramesh and 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 .....

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e 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 th .....

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77 of the Customs Act, and that he also found out the gold jewellery was not concealed in any ingenious manger and the gold jewellery was wearing in her hand by the respondent. That she requested to release the gold bangle on redemption fine under Section 125 of the Customs 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 appellate authority and there is no am .....

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e 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 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 clear that the goods confiscat .....

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ve 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 .....

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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 hand while walking through the green channel, did not declare it to the Customs as required under Section 77 of the Customs Act, 1962 and was intercepted by the Customs officer immediately at exit point. Spot adjudication was conducted on having respondent s request for waiver of Show Cause Notice. During the cour .....

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eved by the order, the respondent filed appeal before Commissioner (Appeals), who allowed re-export on payment of redemption fine of ₹ 65,000/- and reduced the penalty to ₹ 10,000/- Aggrieved by the impugned Order-in-Appeal, the applicant has filed this Revision Application on grounds in the para 4. 9. Government observes that the main contention of the applicant is that the fact that respondent is a carrier has been ignored by the Commissioner (Appeals) who has allowed the unintende .....

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t the respondent had attempted to smuggle the gold bangles in contravention of Section 77 but it was not concealed in any ingenious manner and is a Sri Lankan passport holder 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 of duty on the condition of re-export. 11. Government notes that in the impugned Orde .....

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ctivity 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 .....

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passenger is not the owner of the goods and neither to whom the gold was meant to be handed over have claimed the impugned goods. Therefore, the gold cannot be allowed to be handed over to the respondent for re-export who is only a carrier. In this regard Government places reliance on the following decisions of the higher courts the ratio of which are squarely applicable to the instant case. 12.1 Government note that the absolute confiscation in such cases is upheld in the judgements of Hon ble .....

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5) ELT 423 (S.C) 2003(6). Section 161 to the facts of the case/we find that; in the present case/the assessee did not fulfull the basic eligibility criteria, which makes the imported item a prohibited goods; hence/we see no reason to interfere with the impugned order. The special leave petition is accordingly dismissed. 12.2 Hon ble High Court of Madras in their judgment dated 02.03.2012 in WP No. 21086/2002 in the case of Aiyakannu vs. JC customs reposted on 2012-110L-806-HC-MAD-Cus has also he .....

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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 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 .....

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er 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 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. In similar circumstances, Central Government has denied re-export of goods in the case of Hemal k. .....

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