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2016 (7) TMI 1020 - GOVERNMENT OF INDIA

2016 (7) TMI 1020 - GOVERNMENT OF INDIA - TMI - Import of baggage without declaring goods - Levy of penalty - carrying contraband or dutiable goods - Held that:- The applicant was neither eligible to import gold nor did he declare the impugned goods that were in a substantial/commercial quantity. Instead he had carefully concealed them on his person to smuggle it into the country and to hoodwink the authorities, Hence, the same cannot be treated as bonafide baggage in terms of Section 79 of the .....

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ation of the impugned gold under Section 111 (d), (j), (I) and (m) of the Act ibid. - Government further finds that in view of the facts and circumstances of the case redemption fine and penalty under relevant provisions of the Act ibid has been rightly imposed on the applicant for the offense committed. The quantum of penalty is reasonable and commensurate to the nature of the offense where the gold has been sought to be smuggled by deliberate concealment. Therefore, the plea of the applica .....

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toms (Appeals) Kolkata, with respect to Order-in-Original No. 43/2013 dated 01.05.2013 passed by Additional Commissioner of Customs, Kolkata. 2. Brief facts of the case are that acting on a specific intelligence watch was kept on a passenger named Shri Abdu Salam Chamundi s/o Shri Mohammad Bapu Chamundi, holder of Indian passport No. Z 2380163 dated 21.02.2012 issued from Dubai, who arrived at N.S.C.B.I. Airport, Kolkata by flight No. QR-294 from Doha on 21.06.2012. On arrival, Shri Abdul Salam .....

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esses but nothing incriminating was recovered. A personal search was conducted in the presence of a gazetted officer and two independent witnesses. As result of personal search, sit was found that passenger had concealed six poly packets in the lower portion of his two legs inside the pair of socks worn by the applicant wrapped with skin colour knee caps thereon. The said six poly packets were opened by the Customs officers in presence of applicant and two independent witnesses, which resulted i .....

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s as mentioned above were seized under the provision of Section 110 of the Customs Act, 1962 read with Foreign Trade(Development & Regulations) Act, 1992 on the reasonable belief that those goods were attempted to be smuggled/illegally imported into India by Shri Abdul Salam Chamundi by misusing the green channel facility and by way of concealing the gold ornaments on his person, rendering the impugned goods liable for confiscation under Section (l) & (m) of the Act, ibid. The details of .....

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Ornaments in chain form weighing 308 gram made of yellow metal believed to be Gold 5. Ornaments made of yellow metal believed to be Gold 90 Ornaments in chain form weighing 1002 grams made of yellow metal 6. Ornaments made of yellow metal believed to be Gold 61 Ornaments in chain form weighing 200 grams made of yellow metal 7. Currency of foreign origin 1 3105 Dinar Dirham 8. Wallet 1 pc. Brown coloured and marked 1'Jovial" 9. Socks 1 pair Black Colour 10. Knee caps 2 pairs One pair of .....

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, 1962 on the reasonable belief that those were being smuggled into India in contravention of the provisions of the Act ibid and hence were liable for confiscation under Section Ill(d), (j), (l) &(m) of the Customs Act, 1962. The goods at sl.no. and 14 had been seized under the provisions Section 110 of the Act, ibid on a reasonable belief, those would be relevant to the proceedings of the case. The goods at sl.no. 9,10 and 11 had been seized on a reasonable belief those were used to conceal .....

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by the Customs officers while he was passing through the green channel; that on being asked by the Officers whether he was carrying any dutiable goods to which he replied in the negative; that his baggage was examined in the presence of two independent witnesses but nothing incriminating was found; that his personal search in presence of a Gazetted officer and two independent witnesses was conducted after serving him notice under Section 102 of the Customs Act, 1962 and officers recovered ornam .....

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on also he had carried such types of ornaments and arrived at Mumbai Airport from Dubai via Doha; that initially he was working in Dubai in different shops such as Damas Jewellery shop; that for the last one year he had been working in trading of garments from Mumbai to Dubai; that on 21.06.2012 while going from Goa to Dubai he was directed by one person named Damodi, resident of Bhatkal, whose phone no. was 08904433031, to pick up the gold ornaments from Baffle Jewelers, Gold City building, Dei .....

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he had never seen the person; that he was instructed from Dubai that the person to whom the gold ornaments was to be delivered at Mumbai, would contact him on his mobile no.; that he would have got a commission of ₹ 40,000/- for the said consignment apart from the expenses. 2.3. A Government approved value Shri A.B. Kundu was called upon on 21.06.2012 and he valued the goods (Gold Ornaments) as below: Sl.No. Articles Seized Description Net.Wt. Value(Rs.) 1. 75 pcs. Of gold chains 18K Gold .....

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isusing the green channel facility. On earlier occasions also as admitted by him, he had carried similar consignments and he was an habitual offender. The applicant was arrested under Section 104 of the Customs Act, 1962 with the prior permission of competent authority. He was produced before the Ld. C.J.M. of Barasat Court on 22.06.2012 and was granted bail by the Ld. C.J.M. on the same day. 2.5 On investigation of the mobile no. given by the applicant, it was revealed that the number belonged .....

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stoms Act, 1962, confiscation of goods at sl.no. 9,10 & 11 of the Table under Section 119 of the Customs Act, 1962 and imposition of penalty under Section 112(a) and (b) of the Customs Act, 1962 for the confiscation of provisions of Customs Act, 1962. Upon adjudication of the Show Cause Notice, the Additional Commissioner of Customs passed Order-in-Original No, 43/2013 dated 01.05.2013 and ordered: a. Confiscation of 562 pcs of gold chains valued at ₹ 85,14,265/- under Section Ill(d), .....

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try. 3. Being aggrieved by the said Order-in-Original, the applicant filed appeal before Commissioner (Appeals) who vide his Order-in-Appeal No. 30/Cus (Bag)/Kol(AP)/2013 dated 06.122013 upheld the order of the adjudicating authority. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this Revision Application under Section 129 DD of Customs Act, 1962 on the following grounds: 4.1. That the gold jewellery was not prohibited in nature and was not mentioned in the list of .....

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e workable hence may be reduced to the minimal. 4.3. That the applicant was arrested by the department and the impugned goods were in custody of the department ever since 21.06.2013. That he has suffered financially and mentally. 4.4. That the disposal action for the seized goods was initiated by the seizing unit by filing a petition in Learned Court of Chief Magistrate, Basarat, West Bengal. That presently the seized goods are under process of disposal by disposal unit. That the goods are not a .....

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ice was also issued to the Respondent Commissionerate on 14.12.2015, in response to which the following submissions have been made: 5.1. That the contention of the applicant that gold is not a prohibited item does hold ground in light of the judgement of 0m Prakash Bhatia Vs Commissioner of Customs 2003 (6) SCC 161 which states that: "10-From the aforesaid definition, it can be stated that (a) if there is any prohibition of import or export of goods under the Act or any other law for the ti .....

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ligible passenger who did not satisfy the conditions laid down in Notification No. 12/2012-Cus dated 17.03.2012, the seized gold imported by the applicant becomes prohibited goods. 5.3. That the applicant neither in reply to the show cause notice nor during the personal hearing ever asked for re-export. That during appeal he requested for re-export of the goods after release on payment of fine, penalty and duty. That the Commissioner (Appeals) held that the impugned goods may be re-exported afte .....

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of the applicant is not correct that gold jewellery may be allowed on redemption fine with nominal penalty in as much as there are plethora of case laws wherein it is stressed upon that the gold imported by way of concealment should be confiscated absolutely. 6. Personal hearing scheduled in this case on 20.01.2016 was attended by Shri V.K. Puri, Advocate on behalf of the respondent who stated that the export of the impugned goods be allowed in view of similar decisions by the Commissioner (App .....

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On perusal of records, Government observes that on 21.06.2012 on the basis of information officers of Customs at Kolkata Airport intercepted and examined in detail the baggage of Shri Abdul Salam Chamundi who arrived from Doha by Flight No. QR 294. The examination under panchnama resulted in recovery of non bonafide baggage items such as 562 pieces of gold chains valued at ₹ 85,14,265/- concealed on the body of the passenger. The applicant had not-declared the goods and hence the goods wer .....

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dated 01.05.2013 ordering confiscation of seized goods valued at ₹ 85,14,265/- with an option to redeem the same on payment of redemption fine of ₹ 25,00,000/- and imposition of personal penalty of ₹ 10,00,000 /- on the applicant. Aggrieved by the said order, the applicant filed appeal before the Commissioner (Appeals) who vide Order-in-Appeal No.30/Cus(Bag)/Kol(AP)/2013 dated 06.12.2013 rejected the appeal of the applicant. Now the applicant has filed this revision applicatio .....

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and the passenger admitted in his statement that he was carrying the gold without paying duty as a carrier for a monetary consideration. The passenger was not entitled to import the impugned gold under Rule 6 of the Baggage Rules (which allows import of only specified quantity of gold jewellery for eligible category of passengers). Further import of goods in trade quantity through baggage mode is not permissible in terms of para 2.20 of EXIM Policy 2004-2009 and violates provisions of Section 11 .....

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ditions subject to which the goods are permitted to be imported or exported have been complied with . 10.1. The Apex Court -in the case of 0m Prakash Bhatia Vs. Commissioner of Customs Delhi reported in 2003(155) ELT 423 (SC) has categorically held that if there is any prohibition of 'import or export of goods under the Customs Act, 1962 or any other law for the time being in force the goods would be considered to be prohibited goods and this prohibition would also operate on such goods the .....

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ad carefully concealed them on his person to smuggle it into the country and to hoodwink the authorities, Hence, the same cannot be treated as bonafide baggage in terms of Section 79 of the Act ibid. The said cold is imported in violation of provisions of Section 77, 79, of Customs Act, 1962 para 2.20 of Exim Policy of 2009-14 and provisions of Section 3 (3) and 11(1) of Foreign Trade (Development & Regulation) Act, 1992. The same would thus appropriately constitute prohibited goods" li .....

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