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2016 (7) TMI 647 - GOVERNMENT OF INDIA

2016 (7) TMI 647 - GOVERNMENT OF INDIA - TMI - The applicant was not eligible to import gold either in terms of Notification No. 31/2013-Cus dated 01.03.2013 nor under rule 6 of Baggage Rules ibid. He also did not declare the impugned goods that were in a substantial/commercial quantity. Hence, the same cannot be treated as bona fide baggage in terms of Section 79 of the Act ibid. The said gold is imported in violation of Foreign Trade provisions of Section 77, 79, 11 of Customs Act, 1962; para .....

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ses of bonafide baggage declared to Customs, which the applicant failed to do, thus the applicant is not eligible 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-expor .....

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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 Singapore by Air India Flight No. Al 359 dated 26.09.2011 while he was proceeding through the Green Channel in the Arrival Hall of the Anna International Airport after he had cleared the immigration and coll .....

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to the AIU room for detailed examination of his baggage and search of his person in the presence of the witnesses. Before commencement of examination of his baggage, the Officer once again questioned the applicant in the presence of witnesses whether he was in possession of any gold or other electronic goods for which he replied that he was not in possession of any gold and that he was carrying only one Sony 32" Television. Thereafter, the officer opened and examined the checked-in baggage .....

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nd baggage of the applicant in the presence of witnesses -z-ld was found to contain his personal clothes and toiletries only. The officer then informed the applicant that he would have to search his person and enquired whether he would prefer to have it done before a Magistrate 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 gra .....

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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 Trade (Development &am .....

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g Nos. 218140, 218141, 218142 and 218143, the corresponding claim tags and the Customs Declaration Card were also seized under the same Mahazar for further action under Customs Act, 1962. 2.1. The applicant in his voluntary statement dated 27.09.2011 given before the Customs officers at the Anna International Airport immediately after seizure, after narrating his personal details, interalia had stated that he is a B.A. History Graduate; that he can read, write and speak Tamil and English; that h .....

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359 ; that he collected his baggage tagged in his name bearing baggage tag no. SQ218148, SQ 218141, SQ 218142 and SQ 218143 and was attempting to pass through the green channel wherein he was intercepted by the Customs Officer; that he then went on to narrate the sequence of events which led to the seizure of two gold bars and one gold coin valued at ₹ 5,74,725 /- and electronic goods valued at ₹ 59,760/-; that when he went to Singapore on 17.09.2011 he borrowed 12000 SGD from his fr .....

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rchased 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 .....

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Search Warrant No.16/2011 dated 05.10.2011 issued by the Assistant Commissioner of Customs (R&I-Air) in the presence of two witnesses. However, as the residence of the applicant was locked, the said Search Warrant could not be executed. A mahazar to that effect was drawn. A search was conducted at the said residential premises on 14.10.2011 in execution of the Search Warrant No.17/2011 dated 14.10.11 issued by the Asst. Commissioner of Customs (R&I-Air). During the course of search neit .....

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tronic goods valued at ₹ 59,760/- (Rupees Fifty nine thousand seven hundred and six only) should not be confiscated under Section 111 (d), l) and (m) of the Customs Act, 1962. Ill) The light beige 'D-CodeI trouser worn by the applicant which was used for concealing the gold should not be confiscated under Section 119 of the Customs Act, 1962 IV) Penalty should not be imposed on Shri Haja Moonideen Abdul Jaleel under Section 112 (a) of the Customs Act, 1962. 2.7. Accordingly, the Additi .....

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es, after deducting the baggage allowance as per the passengers eligibility. (iii) Confiscation of the light beige D-Code trouser worn by the applicant which was used for concealing the gold bars and coin under Section 119 of the Customs Act, 1962. (iv) Penalty of ₹ 55,000/- on the applicant under Section 112 (a) of the Customs Act, 1962. 3. Being aggrieved by the said Order-in-Original, the applicant filed appeal before Commissioner (Appeals) who vide Order-in-Appeal No.C.Cus No. 1480/201 .....

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icer 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 th .....

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age rate of Duty. 4.7. That the lower authority ought not to have absolutely confiscated gold as it is not prohibited item as per EXIM Policy. That the absolute confiscation is very harsh. 4.8. That the lower authority ought to have seen that the applicant had purchased the gold for his daughter's marriage and not for sale. 4.9. That the lower authority ought to have seen that the gold is not comes under prohibited goods and therefore the Section 125 of the Customs Act is attracted. That und .....

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est for re-export of the goods when the applicant made true declaration to the Intelligence Officer and that no opportunity was given to him to declare before the 'proper officer. 4.14. That the lower authority ought to have seen that the applicant was not allowed to go to the allotted table to declare and under that circumstances the officer of Customs should help the passenger and guide him properly. 4.15. That the lower authorities ought not to have rejected the request for re-export of t .....

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before 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 p .....

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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 friendly and help the passengers who travel abroad first time and advise them properly and guide them for deposit of goods for re-export as per Section 80 of the Customs Act instead of barging on them. 4.24 That the gold was kept in his pant pocket which is the normal practice and the gold cannot bring in hand. That thi .....

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#8377; 5,74,725 and reduce the penalty. 5. Personal hearing was scheduled in this case on 15.09.15, 13.10.2015 & 04.11.2015. Nobody attended the hearing nor sought any adjournment. 6. Government has carefully gone through the relevant case records available in case file, oral & written submission and perused the impugned Order-in-Original and Order-in-Appeal. 7. On perusal of records, Government observes that the officers of the Air Intelligence Unit of Customs, Chennai Airport intercept .....

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2 above). During his personal 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. 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 an .....

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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 .....

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Magistrate E.O.II, Egmore, Chennai who remanded him to judicial custody. The Additional Commissioner of Customs(Airport), Chennai vide Order in-Original No. 03/2012 dated 08.02.2012 ordered absolute confiscation of the 2 gold bars and one gold coin totally weighing 217 grams valued at ₹ 5,74,725/- under Section 111 (d),(l) and (m) of the Customs Act, 1962 read with the Section 3 (3) of the Foreign Trade (Development and Regulation) Act, 1992; release of the assorted electronic goods value .....

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vide impugned order upheld the Order-in-Original and rejected the appeal. Now the applicant has filed this revision application on grounds mentioned in para 4 above. 8. Government observes that the applicant has contended that he was eligible for the import of gold; that the absolute confiscation of gold was not warranted as it is allowed under the EXIM Policy; that the gold be released to him on concessional rate or its re-export permitted; and that the personal penalty may be reduced. 9. As re .....

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on records that he fulfilled the criteria of the said notification. Government therefore, finds no merit in the plea of the applicant that he was eligible to import gold. 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 conducte .....

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, 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 does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported ha .....

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nditions are not fulfilled. Further in the case of Samyanathan Murugesan vs Commissioner reported in 2010(254) ELT A15 (SC) the Hon'ble Supreme Court has held that the passenger did not fulfill the eligibility criteria it makes the imported gold prohibited goods. 10.2. The applicant was not eligible to import gold either in terms of Notification No. 31/2013-Cus dated 01.03.2013 nor under rule 6 of Baggage Rules ibid. He also did not declare the impugned goods that were in a substantial/comme .....

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In view of the position explained above, Government finds no infirmity in the impugned Order-in-Appeal as far as absolute confiscation of the impugned goods is concerned and finds no reason for interference. 11. The applicant has also requested to permit re-export of impugned goods. Government finds that the provision for re-export of baggage is available under Section 80 of the Customs Act, 1962. However, this Section is applicable only to cases of bonafide baggage declared to Customs, which t .....

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