TMI Blog2017 (7) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... oudhary Revenue is in appeal against order of the Commissioner (Appeals), whereby after considering the cross appeals, both the appeals were dismissed holding that the ground raised by Revenue and assessee are not tenable in view of evidence recorded. 2. The brief facts are that the respondent Mohd. Rasheed Ansari arrived by Flight No. WY -263 on 16 February, 2014 at Lucknow Airport from Muscat. The Air Customs Intelligent Unit (ACIU for short) intercepted the respondent and enquired about the dutiable goods in his possession, if any, which was replied in the negative. His Disembarkation card was also having no mention of dutiable goods. However, on subsequent frisking and checking, two bars/biscuits appeared to be made of Gold wrapped in carbon paper and tape and marked as SUISSE, 10-TOLAS, FINE 6010,999.9 were recovered from him, which he had secreted in his underwear. As per the assaying report prepared by approved valuer, recovered two Gold bar/biscuits weighing 233.280 gms. in total were made up of Gold and were valued at ₹ 7,23,168/-. On the belief that the respondent was illegally importing/ smuggling Gold in contravention of the Customs Act/Baggage Rules/FT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in his inner garments wrapped in carbon paper with cello tape. The Gold biscuits were actually kept in the pocket of the pant because Gold biscuits cannot be brought openly in hand. The respondent was aware that a passenger holding valid passport and living abroad for more than six months can import Gold biscuits not exceeding one Kg in weight. That is why he had brought two Gold biscuits with him and intended to discharge Customs duty payable thereon, but unfortunately he was intercepted the Customs Officer prior to reaching the Customs post for making the declaration. He also urged that Gold is not restricted or prohibited goods for bringing by person returning after more than a year of stay abroad. The only requirement is to pay the concessional amount of Customs duty leviable on the Gold imported with the baggage of the person. It was also urged that the respondent on the day of arrival was required to sign on the purported statement under Section 108, of which he had no opportunity to know the contents thereof. Accordingly, the said statement had no evidentiary value. 5. The Joint Commissioner passed the Order-in-Original dated 5 th March, 2015 holding that the two Gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 112 of the Act. 7. The learned Commissioner after considering the cross appeals have been pleased to hold and observe that the respondent has categorically admitted his mala fide in his first statement dated 16 February, 2014, on the date of Seizure. Though the respondent have claimed that the statement was recorded under duress but the same was not accepted by the learned Commissioner, as there was no protest in the near vicinity by the respondent before the Higher Officials of the Department, or any statement amounting to retraction. Further, cross-examination of panchas was only sought in the defence reply to the SCN. Thus, the purported retraction was made after more than eight months. Accordingly, the said retraction was held to be having no evidentiary value. It was further observed that the respondent have claimed that the Gold was kept in his pant pocket wrapped in carbon paper. Further, it is observed as a matter of common understanding, the carbon paper and cello tape is not required if the goods are to be simply kept in the pant pocket. Such things are needed if the goods are to be glued/attached with the surface of cloth. Thus. the version of packing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or custody such goods were seized. It was further held that the redemption fine imposed is just and proper as Section 125(1) of the Act only sets the upper limit of RF and is open to the adjudicator to fix the amount of RF anywhere because such upper limit as per the facts and circumstances. So far the ground that the Order in Original is self-contradictory, it was observed that if this ground of Revenue is accepted for a moment, even then it is not understandable as to what else, except the confiscation of subject goods. which is already done, could have adjudicator. Hence. the ground is fit to be rejected. As regards penalty, it was held that the penalty imposed to ₹ 70,000/- is just and proper as the Section provides that imposition of penalty is discretionary and cannot exceed the duty sought to be evaded or ₹ 5,000/-, whichever is greater. 9. Being aggrieved the Revenue is in appeal before this Tribunal on the ground that the smuggled Gold is liable to absolute confiscation, as the import under the Baggage Rules is for an eligible passengers who is coming to India after a period of not less than six months of stay abroad and short visits if any, made by the el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and circumstances in the case of CC, Lucknow Vs. Mohd. Nayab and another vide final order No.71006-7007/2016 dated 20 th June. 2016. have held as follows :- Having considered the rival contentions, I find that respondents had been working abroad in Saudi Arabia for the last 14 months. I further find that the quantity of 233.280 gms of gold, each, is not a commercial quantity and is valued at ₹ 7,05,672/- 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, I find that the respondents could have imported gold up to 1 Kg each subject to proper declaration. Thus a case of non-declaration is made out at best, against the respondent. In the circumstances of the case, I do not find any reason to interfere with the order of the learned Commissioner (Appeals) who have upheld the order of confiscation with redemption fine, redeemable on deposit of duty and fine. I further find that the penalty imposed on the respondents, is adequate. Accordingly, the appeal of Revenue is dismissed and the order of learned Commissioner (Appeals) is upheld. The respondents will be entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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