TMI Blog2016 (7) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... ible for re-export of impugned goods. Also being an Indian National, this is nothing but an attempt by the applicant to avoid the burden of duty, In similar circumstances, Central Government has denied re-export of goods. The goods which are liable for confiscation cannot be allowed to be re-exported. Hence the Government is of the view that the request of the applicant for re-export of goods is not legal and proper and cannot be allowed. - F.No.373/32/B/13-RA-CUS - ORDER NO. 26/2016-CUS - Dated:- 3-3-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This Revision Application is filed by Shri Haja Mohideen Abdul Jaleel (hereinafter referred to as Applicant) against the Order-in-Appeal No.C.Cus No. 1480/2012 dated 19.12..2012 passed by Commissioner of Customs, (Appeals) Chennai, with respect to Order-in-Original No. 03/2012 dated 08.02.2012 passed by Addl. Commissioner of Customs, Airport, Chennai. 2. Brief facts of the case are that the on 26.09.2011, officers of the Air Intelligence Unit of Customs, Chennai Airport intercepted a passenger by name Shri Haja Mohideen Abdul Jaleel, holder of Indian Passport number Z1744593 dated 17.06.2008 who had arrived from Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a Gazetted Officer, to which he opted for the latter and the search of his person was conducted in the presence of the witnesses and the Superintendent of Customs. During the search, two gold bars each weighing 100 grams and with foreign markings and one gold coin weighing 17 grams with foreign markings were recovered from the internal pocket of the trouser worn by the applicant. Shri B. Mohall Acharl, a Government of India certified goldsmith tested the two gold bars and one gold coin by acid and touchstone method in their presence and in the presence of the applicant and certified that the gold to be of 24 carat. As the applicant did not declare that he was carrying gold and also he did not have or produce any document to show legal import of the gold and he had attempted to smuggle the said gold into the country by concealing the same on his person, the two gold bars and one gold coin totally weighing 127grams and totally valued at ₹ 5,74,725/- (Rs.Five Lakhs Seventy Four Thousand Seven Hundred and Twenty Five Only) (IMV) were seized under a Mahazar in the presence of witness and in the presence of the applicant for action under the Customs Act, 1962 read with Foreign T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N Card NO. ADRPA3659 F and he has an account in Corporation Bank; that he has 3020 sq. ft. land in M.M.D.A. Colony purchased through MMDA; that this is his first offence and requested for leniency. 2.3. The applicant in his further statement dated 27109.2011 stated that he is residing in a rented house; that he is not living with his wife Smt. Ayisha and does not know the address where she lives; that he lives with his second wife Smt. Bousiya; that he does not remember the Corporation Bank branch address where he is holding the account at present, 2.4. The applicant was arrested on 27.09.2011 and was produced before the Hon'ble Addl. Chief Metropolitan Magistrate E.O.II, Egmore, Chennai who remanded him to judicial custody. He was lodged in the Central Prison, Puzhal Chennai, A phonogram vide no. E 52 dated 27.09.2011 was sent to Smt Bousiya, W/o Shri Haja Mohideen Abdul Jaleel, intimating his arrest. 2.5. As a follow up, the officers of R I Unit Air visited the residential premises of the applicant at Apt.No.14, Ill Floor, 63, K.K. Road, Venkatapuram, Ambattur, Chennal 600053 to execute the Search Warrant No.16/2011 dated 05.10.2011 issued by the Assistant Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) who vide Order-in-Appeal No.C.Cus No. 1480/2012 dated 19.12.2012 upheld the Order-in-Original and rejected the appeal. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this revision application under Section 129 DD of Customs Act, 1962 before Central Government on the following grounds: 4.1. That the order of the lower authorities are contrary to law, weight of evidence and violates the principles of natural justice. 4.2. That the lower authority failed to give an opportunity to declare the goods to the proper officer of Customs. That the applicant was detained pre-emptively and denied his right to declare before the proper officer of Customs. 4.3. That the lower authority ought to have seen that the applicant declared the goods which were in his possession as per section 77 of Customs Act before intercepting officer but they failed to record the same. 4.4. That the lower authority ought to have seen that the applicant did not cross the Customs barrier. 4.5. That the lower authority ought to have seen that baggage is not confined merely to bonafide baggage within the meaning of Section 79 of the Customs Act or to the personal effects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the proper officer and there by the import itself is not completed. 4.18. That the lower authority ought to have seen that the bonafide baggage comes into picture only to claim free allowance. 4.19. That the lower authority ought not to have imposed the penalty when the ingredients of Section 112(a) of Customs Act itself not provided in this case. 4.20. That the lower authority ought not to have imposed higher penalty when there is no mensrea on the part of the applicant. 4.21. That-the power authority ought not to have held that the import is complete when there are lot of dictum held that import means i.e to say unless the goods are brought into the country for the purpose of use, enjoyment, consumption, sale or distribution are incorporated in and got mixed up with totality of the property in the country they cannot to have been imported. 4.22. That the lower authority ought to have seen that when he was not given opportunity to declare before the proper officer and therefore his right was curtailed by the intelligence officer and thereby his right of exercising the Section 80 of Customs Act also curtailed. 4.23. That the officer of Customs should be frie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,725/- (Rs.Five Lakhs Seventy Four Thousand Seven Hundred and Twenty Five Only) were seized under the Customs Act, 1962. The electronic goods valued at ₹ 59,760/- were also seized. The applicant in his voluntary statement dated 27.09.2011 stated that he is the holder of Indian Passport No. Z1744593 dated 17.06.2008; that apart from doing real estate business in Ambattur he also goes to Singapore once in a month to meet his customers; that while coming back from Singapore he buys TV, Camera, Watches etc. and sells them in the local market; that during this year he had gone 6 times to Singapore; that on 27.09.2011 he had arrived at the Chennai Airport from Singapore by Air India Al 359; that when he went to Singapore on 17.09.2011 he borrowed 12000 SGD from his friend Shri Habib and purchased 217 grams of gold biscuits from M/S G.J. Goldsmith; that he purchased TV and electronic goods from the balance money; that in order to earn more profit he decided to pass through green channel without paying Customs duty; that he is aware that smuggling is an offence but to get more profit he attempted to pass through the Green Channel. The goods, therefore, did not qualify to be treated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.1. Government observes, it is an established fact that the goods were not declared to the Customs under Section 77 of the Act and the passenger passed through the green channel. Even upon being asked if he had anything to declare, he answered in the negative except for the Sony T.V. set before his personal search was conducted. However, upon his personal search 217 grams of 24 carat gold was recovered and the passenger admitted in his statement that he was carrying the gold without paying duty in order to earn more profit. The passenger has also not fulfilled the conditions of Notification 31/2013-Cus dated 01.03.2013 and nor was he entitled to import the impugned gold under Rule 6 of the Baggage Rules (which allows import of only specified quantity of 22 carat personal gold jewellery for passengers). 10. As regards, whether the import of the impugned good is prohibited or not, Government notes that prohibited goods have been defined in Section 2 (33) of the Customs Act, 1962 as under: 2(33) - Definition - 'Prohibited goods means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port 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 the goods which are liable for confiscation cannot be allowed to be re-exported. Hence the Government is of the view that the request of the applicant for re-export of goods is not legal and proper and cannot be allowed. 12. Government also finds no merit in the plea of the applicant that the gold was not required to be declared and can be cleared free of duty on 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 only by eligible passengers subject to fulfillment of conditions thereof. Government finds that the applicant was carrying gold and also he did not have or produce any document to show legal import of the gold and he had attempted to smuggle the said gold into the country by concealing the same on his person. Also in the Customs declaration form he neither declared the gold or the electr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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