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Commissioner of Customs (Prev.) , Lucknow Versus Shri Mazaharul Haq and Shri Azimul Haque

2016 (8) TMI 340 - CESTAT ALLAHABAD

Confiscation baggage gold bars brought from abroad without declaration during the process of frisking two gold bars found seizure liable to confiscation Held that: - respondents had been working abroad in Saudi Arabia for the last 14 months the quantity of gold is not a commercial quantity which cannot be said to be a quantity which the respondents could not purchase and import into India from their savings out of their earnings. Further, the respondents could have imported gold up t .....

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341-343/Cus/APPL-LKO/LKO/2015 dated 02/09/15 passed by the Commissioner (Appeals) Central Excise, Customs and Service Tax, Lucknow. The issue in this appeal is whether under the facts of circumstances whether absolute confiscation was warranted for the two Gold Bars/Biscuits from each of the respondents weighting 111 gms approximately each, which was not declared to the Customs and found while respondents were walking out through green channel. 2. The brief facts are that the respondents arrived .....

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d tape were recovered from the purse of each of the respondents. The said gold bars were marked as /IHBTM, SUISSE, 10-Tolas, Fine Gold, 999.9. The said gold bars subject examination approved values, who certified that the recovered bars/biscuits are of gold totally weighting 466.560 gms valued at ₹ 14,11,344/- The goods were seized vide Panchanama on the same day as it was believed that the same is liable to confiscation under section 111 (i), (l) & (m) of Customs Act, 1962 read with b .....

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ed, they were required to call Shri Wali in Riyadh for which they were promised to be paid some money and in greed, they had resorted to this illegal import. They also stated that the number of Shri Wali is 0506648491. They also stated that their Air ticket was arranged by Shri Wali. Pursuant to summons for further statement, the respondent Azimul Haque had appeared on 27/06/14 and his statement was recorded under Section 108 of the Customs Act. He stated that two gold bars/biscuits 10 Tolas eac .....

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besides that he knew nothing. Pursuant to enquiry, show cause notice was issued as to why the goods be not confiscated and held liable to confiscation under Section 111 (i), (l) and (m) of the Customs Act, along with confiscation of the two black color leather like material purse/wallet consisting white paper wrapped with cello tape used as concealing material under Section 119 of the Act ibid. Further, two Nokia mobile phones why not be liable to confiscation under Section 111 of the Act being .....

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and kept in the leather wallet in his pocket of the shirt. Thereafter, he was taken to Customs office, and asked to sit in the room and wait till 8:30 PM, when an officer asked him to sign his statement as dictated. The respondent tendered his statement as was dictated to him and the same was not voluntary & true and the respondent was bringing these two gold biscuits for the marriage of his sister. It was not concealed anywhere but kept in his wallet in the pocket of his shirt along with th .....

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ing after 14 months of stay. He had purchased the gold biscuits with relevant receipt through Mr. Walliullah. He was not a carrier for the said Mr. Wali. He had purchased the gold biscuits for marriage of his sister which was scheduled in May 2014 as is evident from the annexed card. Further, as he was caught from the embarkation hall, at the time of fetching his luggage from conveyor belt, the time for the filing of declaration to the Customs officer, had not come. Since he was working in Saudi .....

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Customs duty leviable on the gold imported with the baggage by the person. Under the circumstances, the Clauses (i)(l), and (m) of Section III and Section 119 Customs Act, are not attracted. Further, there is no case of any misdeclaration made out against the respondents. As gold is importable and was seized before the respondent could reach at the post of Customs officer for making declaration and paying duty, there is no breach of Section 112 of the Act. Further, under the circumstances, the i .....

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declaration of the seized dutiable goods, the same were recovered by the Customs officers, on finding that the same are not declared in the disembarkation card, but the same was claimed by respondents to have been declared orally on being intercepted by the Customs Officer at the conveyer belt. It was further found that the respondents have returned to India after staying abroad for more than one year and hence, they were eligible for bringing gold up to I Kg. Further, it is admitted fact that .....

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Trade (Exemption from application of Rules in certain cases) Order, 1993 and the provisions of Foreign Trade (Regulation) Rules, 1993. The imported gold was held to be illegally imported as not declared properly in terms of Section 77 of the Act and was held liable to confiscation in terms of Section 111 of the Customs Act, 1962. The Nokia mobile phones were held not liable to confiscation. In so far the black color leather like material purse/wallet are concerned, were also not held liable for .....

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ther penalty of ₹ 10,000/- each under Section 114AA of the Customs Act, 1962. 6. Being aggrieved the respondents preferred appeal before the Commissioner (Appeals) on the grounds that the gold biscuits were imported for personal use and no fine and penalty was imposable under the facts that they were apprehended and intercepted before the occasion to make declaration to pay the duty, could come and on further ground that gold biscuits are neither prohibited nor restricted goods and importa .....

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. The revenue was also in appeal before the Commissioner (Appeals) on the ground that as the gold have been concealed by the respondents, could not be considered as bona-fide baggage and hence would fall under the category of prohibited goods and thus, is liable for absolute confiscation. The order-in-original is self contradictory to the extent that at one place it holds that that eligibility criteria of an eligible passenger is not satisfied while, at the other place, it is held that such elig .....

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to dismiss the appeals of both the respondents herein and the Revenue observing that it is a case of importer import of goods and hence, liable to confiscation and not absolute confiscation. Further, absolute confiscation is a matter of discretion under circumstantial exigencies which comes into play in such cases where no claimant of trapped goods is identifiable/available. In the present case, since the concerned persons or the respondents from whose the possession, the goods were seized, are .....

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where the "owner" is not known, the option of redemption would be given to the person from whose possession or custody such goods were seized, Further, holding that the option of redemption given to the respondents by the adjudicating authority, is correct. Further, the quantum of redemption fine imposed, was also found to the proper and reasonable, so far, penalty under section 112 of the Act is concerned, it was observed that the same was discretionary and cannot exceed the duty soug .....

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uantity at prescribed rate of duty. In the present case, the facts indicate that the respondents were carriers of gold and attempted to smuggle the same and thus, cannot be equated as eligible passenger. Further, the right of a smuggler could not be and should not be equated with the right of a bona-fide passenger. In the present case, the facts indicate that the gold did not belong to the respondents/passengers who were simply carrier for some other person and further, attempted to smuggle the .....

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