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Mr. Byar Mohammed Asraf, Kerala. Versus Commissioner of Customs, (Airport) Bangalore

2016 (7) TMI 227 - GOVERNMENT OF INDIA

Import of goods in a baggage without declaration - restricted goods - 164 cartons of Cigarettes, one taka of black burkha cloth, 44 gold chains of different types/sizes weighing in toÉl 500 grams approximately. - it was submitted that, he applicant had approached the Customs officer on duty in the arrival lounge to declare the goods brought by him and had requested the officer to fill up the Customs declaration form. That had neither entered the green channel nor concealed any goods/ information .....

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rit in the plea of the applicant that it is difficult to conceal valuable goods like gold below the pant belt. It is a fact on record that during the search, it was found that the applicant had concealed two packets wrapped with brown tape around his stomach under the pant belt which on examination, were found to contain in all 44 gold chains of different types/sizes, totaling weighing 500 grams. Also, in his statement recorded under Section 108 he admitted that he had concealed the above said g .....

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ground in view of the fact on record that the applicant is a frequent traveller. Government also observes that the applicant's averment on cross examination of witness does not cut any ice to prove his innocence. - confiscation and levy of penalty upheld - Decided against the applicant. - F.No.373/03/B/13-RA - ORDER NO. 15/2016-CUS - Dated:- 23-2-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This Revision Application is filed by Mr. Byar Mohammed Asraf, Kerala (hereinafter referred to as th .....

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he Superintendent, having reasonable belief that the person was carrying contraband articles, desired to search the person and his baggage. The person was intercepted and it was found that his name is Shri Bayar Mohammed Asraf, aged 49 years, son of Shri Bayar Andunchi Beary and a resident of H. No. 1656, Badiyar House, PO Beripadave via Uppala, Kasarkod District, Kerala and that he was holder of Indian passport bearing No. Z 1951375 issued on 03.09.2009, and had travelled from Dubai by Emirates .....

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different types/sizes weighing in toÉl 500 grams approximately. When questioned the passenger informed that he had concealed the above said gold chains in order to avoid Customs Duty. The accused had stayed in Dubai only for two days and he was not eligible to import gold in any form. 2.2. In addition to the gold ornaments, the Superintendent also found one boarding pass in respect of seat No. 33K (flight No. EK 568), electronic ticket for travel from Dubai to Bangalore along with three b .....

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s purportedly showing purchase of burkha cloth in Dubai, one old e-ticket for travel on 16th January 2010, one e-ticket for travel on 30th May, one small note book containing certain personal entries, one Customs declaration form and one Nokia mobile model No. 1202-2 with Airtel SIM bearing No. 9867861422, one belt and one SIM card in respect of mobile No. 050-2787106 (issued in Dubai by Ittasalath service provider). 2.3. The gold chains were seized under Section 110 of Customs Act, 1962. The sa .....

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nd the total value of the gold chains @ ₹ 1,568/- as per the prevailing market rate worked out to be ₹ 7,84,000/-. The said Superintendent seized the Cigarettes by repacking the same in the bags and seized the gold chains along with the wrappers under mahazar proceedings on 22.04.2010. 2.4 A statement of Shri Bayar Mohammed Asraf was recorded under Section 108 of the Customs Act, 1962. 2.4.1. In his statement he stated that he is the holder of Indian passport bearing number Z 1951375 .....

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in their shop; that the money got from this business is used for purchase of burkha cloth as well as for family maintenance; that while going to Dubai he usually boards the flights from Mumbai by travelling from Kasargod to Mumbai by bus or train; that he travels to Dubai very frequently, almost every week and sometimes within a day or two from the date of arrival in India. 2.4.2. Shri Bayer Mohammed Asraf further stated that he had arrived by EK 568 at Bengaluru International Airport at 0231 h .....

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of Cigarettes, one taka of black burkha cloth neatly packed in two rexin bags, one bag wrapped with cotton cloth and three plastic covers; that the officers then requested him to come to the Customs Room and conducted a personal search of his body; that he had concealed 44 gold chains in two packets on his body (in stomach area below the belt); that the said officers have removed the packets in front of him and the packets were opened and counted in his presence and they were weighed and found .....

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make profit and have not been given to him by anybody; that he also understands that concealing of gold is an offence under the provisions of Customs Act; that on his previous visits to India, he used to always depart from Mumbai Airport and he has arrived at Bengaluru International Airport about 10 times in the last two months. 2.5. Shri Bayer Mohammed Asraf was arrested at 1430 hrs. on 22.04.2010 by issuing an Arrest Memo and after explaining the grounds of arrest was produced before the Spec .....

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44 gold chains valued at ₹ 7,84,000/- under Section 111 (d), (i),(l), (m) and ( o) of the Customs Act, 1962 with an option to redeem the goods on payment of redemption fine of ₹ 4,00,000 /-The redemption fine shall be paid in addition to applicable duties in terms of Sub Section (2) of Section 125 of the Customs Act, 1962. c. Imposed penalty of ₹ 1,50,000 /-on Shri Bayar Mohammed Asraf, under Section 112 (a) & (b) (v) of the Customs Act, 1962. d. Imposed penalty of ₹ .....

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unds: 4.1 That the mahazar states that the applicant was moving around in the arrival lounge in a suspicious manner and appeared to carry some contraband. That the factual position was that the applicant had approached the Customs officer on duty in the arrival lounge to declare the goods brought by him and had requested the officer to fill up the Customs declaration form. That had neither entered the green channel nor concealed any goods/ information from the Customs officers. That the applican .....

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he department does not carry any specific column/row/space, where the passengers can declare details of the goods brought by them. That the form requires the passenger to declare the name, flight number, number of hand baggage, number of checked-in-baggage, and value of goods imported, whether they are carrying any plants or animals and signature. That the applicant had brought cigarettes for personal consumption and old gold ornaments (polished) and wanted to declare the same in the Customs dec .....

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own tape around his stomach below the pant belt and the belt has also been seized. That no garment (like underwear/banian) has been seized by the Customs officers, which was allegedly used to conceal the gold ornaments. That no person can pass through airport security in Dubai by concealing any metallic object on his body. That it is only the figment of imagination of the Customs investigating officers that the gold ornaments were concealed on the body of the applicant using a belt. That the fac .....

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ht by him and made him to sign various papers, the contents of which, he could not understand and have arrested him for alleged offences which were not committed by him at any point of time. 4.5 That the passport of the applicant was seized under mahazar dated 22.04.2010 in spite of unequivocal judgment by the Hon'ble Supreme Court of India in the case of Suresh Nanda vs Central Bureau of Investigation (2008) 3 SCC 674, Gian Singh vs State of Rajastan 2000 (1) Crimes 25 (SC) and Hon'ble .....

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atement were recorded on 22.04.2010 and no additional evidence has been adduced by the investigation to prove the case against the applicant. 4.6 That in spite of long investigation for about six months, including a search of the residence of the applicant, the investigating officers could not gather any documentary evidence to prove the charges invested against him. That there is not even a piece of paper as an evidence to prove that the cigarettes brought by the applicant were for sale/for any .....

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justice. 4.7 That in addition to cigarettes and gold ornaments, the Customs officer have also seized one boarding pass in respect of seat No. 33K (flight No. EK 568), electronic ticket for travel from Dubai to Bangalore along with three baggages slips bearing No. EK 482581, EK 482580 and EK 482579 pasted on its backs, five photographs of the applicant, one photograph of Shri Bayar Ismail Badiyar (brother of Shri Bayer Mohammed Asraf), jet privilege card bearing No. 135528584, two old boarding p .....

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declaration form, one belt and one Nokia Mobile model No. 1202 with Airtel Sim bearing No. 9867861422 and one sim card in respect of mobile No. 050/2787106 issued in Dubai by ittasalth service provider which are neither being relied in the Show Cause Notice nor proposed for confiscation in the notice or Order in-Original. 4.8 That the order of the adjudicating authority is not sustainable in confiscation of the goods, imposing fine and penalty on the following reasons: 4.8.1. That the adjudicati .....

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offender, without giving an opportunity to the applicant to defend himself. That the adjudicating authority cannot be relied upon the case of Thiruvananthapuram International Airport and Mangalore International Airport against the applicant as both are not the subject matter of the Show Cause Notice dated 14.10.2010. That the applicant has changed his cigarette brand to Marlboro instead of Gudag Garam. That the actual position was that the cigarettes brought by the applicant were meant for his p .....

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e rates. That the law does not define what commercial quantity of cigarettes is to be brought. That when the cigarettes have been brought by the applicant only for personnel consumption and not for sale, the adjudicating authority cannot assume that the quantity brought by him is in commercial quantity and is meant for sale. That the investigation department has not produced any evidence before the adjudicating authority to prove that the cigarettes brought by the applicant were in fact for sale .....

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co Products (Packing and Labeling) Rules 2008 requiring every package of cigarettes manufactured or sold in India to have a statutory warning as specified in the schedule are not applicable to the cigarettes bought by the applicant in Dubai. That assuming that the provisions of the above said rules were applicable, the Customs Officer on duty should have detained the cigarettes and should have directed the applicant to affix the pictorial warning stickers, which are readily available in India an .....

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and is not eligible for Notification No.78/2009. That in the case of gold ornaments, the applicant has taken his family gold ornaments from India during his previous visit to Dubai for polishing. That the gold ornaments seized by the Customs officials are neither new nor imported by the applicant for sale. That the applicant knew several persons in Dubai whom he could trust and who could excellently polish the gold ornaments he had carried the same during his previous visit to Dubai. That he ha .....

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ing any valid reason or seeking explanation have seized the gold ornaments and have proposed confiscations of the same. 4.8.5. That gold ornaments brought by him were his own/his family's old ornaments which were brought back after polishing. That the investigation have not produced any evidence in the form of invoice/bill/payment details to prove that the ornaments brought by the applicant were new gold ornaments and were purchased by him in particular shop in Dubai or any other foreign cou .....

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n six months in the past (ignoring the short visits, if any). That the applicant is eligible to bring up to 10 kg of gold, on payment of appropriate duty. That the quantum of gold brought by the applicant is only 500 grams. That the gold ornaments brought by the applicant were raw ornaments, he was eligible to bring the same, as per the above said provisions of the Baggage Rules. That he should have been allowed to import the same on payment of appropriate duty, that the officers chose to arrest .....

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form. That in the absence of any specific place in the form where he could declare the above said goods; he had approached the Customs officer on duty, to help him in making a true declaration. That being the lacuna in the Customs Declaration form, the applicant was arrested and his goods were seized, without giving him an opportunity to make the necessary declaration under Section 77 of Customs Act, 1962. 4.8.8. That the adjudicating authority in Para 25 of Order-in-Original has also come to a .....

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er the custody of the department and they could have tested the gold from their gold value, as to whether the said gold was old gold or new. That the adjudicating authority has totally ignored his submissions and confirmed the demand made as per the Show Cause Notice Dated 14.10.2010. 4.8.10 That his statement had been obtained out of coercion, threat and inducement and hence his statement should not be relied upon. 5.Personal hearing in this case was scheduled on 04.08.2015, 03.09.2015 and 18.0 .....

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al weighing 500 grams and burkha cloth (around 150 to 200 meters) which were not declared to the Customs under Section 77 of the Customs Act, 1962 and passed through the Green Channel. Further, under the statement given to the Customs officers under Section 108 of the Customs Act 1962, he admitted that after passing through immigration and after collecting his baggage from the International baggage claim area, he was moving out of the Customs Area through the Green Channel Gate; that the officer .....

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t the said officers have removed the packets in front of him and the packets were opened and counted in his presence and they were weighed and found to weigh about 500 grams totally; that apart from this he also had personal clothes; that these gold chains were purchased by him out of his savings from a shop in Dubai (namely Al Jara on Dehra Nife road) and he wanted to conceal the same in his body in order to avoid payment of Customs duty; that the Cigarettes were purchased from a shop in Dubai .....

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t has admitted to smuggle the goods without declaring the same to Customs with the intent to avoid payment of Customs duty on the same. The goods, therefore, did not qualify to be treated as bonafide baggage as per Section 79 of the Customs Act, 1962 read with Para 2.20 of the EXIM Policy as in force. The Joint Commissioner of Customs passed the order vide Order-in-Original No. 21/2012-CUS All-J dated 22.03.2012 and ordered absolute confiscation of the commercial quantity of 164 cartons of Cigar .....

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ection 112 (a) & (b) (v) of the Customs Act, 1962 and imposed penalty of ₹ 1,00,000 /- on Shri Bayar Mohammed Asraf under Section 114 AA of the Customs Act, 1962.Commissioner (Appeals) vide Order-in-Appeal No. 165/2012-CUS (B) dated 28.09.2012 upheld the Order-in-Original and rejected the appeal of the applicant. Now the applicant has filed this revision application on grounds mentioned in para 4 above. 8.Government observes that it is an uncontested fact that the impugned goods were n .....

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the items were to be sold to different shops at Kasargod to make profit. 8.1.In this regard, Government also notes that the statement recorded before the Customs officers is valid evidence. Hon'ble Supreme Court has held in the case of Surjit Singh Chhabra Vs. Union of India 97(84) ELT 646 (SC) that statement made before Customs officers though retracted within six days is an admission and binding since Customs officers are not police officers under Section 108 of Customs Act 1962. A similar .....

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age known to him and the same has been signed by him for the same as understood. Therefore, the contention of applicant that he could not understand the contents of the paper signed, cannot be held correct. 8.2.Further, the claim regarding retraction by the applicant of his admission of guilt in the statement before the Customs officers on ground of duress is not borne out in as much as the passenger had admitted to pass the green channel without declaring the impugned goods. Had the passenger d .....

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in support of his plea that the statement was recorded under duress. 9.Government observes that on personal search 44 gold chains concealed in two packets wrapped with brown tape around his stomach under the pant belt were recovered. It is an uncontested fact that the goods were not declared to the Customs under Section 77 of the Act and the passenger passed through the green channel. Neither was the applicant entitled to import the impugned gold under Rule 6 of the Baggage Rules as he did not f .....

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Section 3(3) and 11(1) of Foreign Trade (Development & Regulation) Act, 1992. The same would appropriately constitute "prohibited goods" liable to confiscation under Section Ill(d) of the Customs Act,1962. 9.2.Further, Government notes that the applicant's contention that the ornaments seized were carried to Dubai for polishing is not acceptable. The applicant has failed to provide any evidence on record that the gold was carried by him from India. Moreover the onus to prove t .....

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all 44 gold chains of different types/sizes, totaling weighing 500 grams. Also, in his statement recorded under Section 108 he admitted that he had concealed the above said gold chains in order to avoid Customs Duty. 9.4.Therefore, Government holds that the impugned gold chains have been rightly order for confiscation under provisions of Section Ill(d), (i), (l), (m) and (o) of the Customs Act, 1962. 10.Government further observes that the applicant had brought as personal baggage 164 cartons of .....

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