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In Re : Mohammed Husain Ayyub Chilwan

2017 (5) TMI 1534 - COMMISSIONER OF CUSTOMS (APPEALS), MUMBAI-III

Absolute Confiscation - gold/gold jewellery - penalty - Held that: - There is no findings in the Order that the gold was brought for consideration as carrier - gold is not an item the import of which in any circumstances would danger or be detriment to health, welfare or morals of people as whole, and therefore is liable to be released on payment of redemption fine since it does not cause danger or detriment to health. - An option given to redeem the goods on payment of fine and on payment .....

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ainst the Order-in-Original No. JC/RR/ADJN/75/2015-16, dated 29-5-2015 passed by the Joint Commissioner of Customs, CSI Airport, Mumbai vide which 232 gms. of gold valued at ₹ 5,72,586/- was absolutely confiscated under Section 111(d), 111(l) and 111 (m) ibid and penalty of ₹ 60,000/- was imposed under Section of 112(a) and (b) of Customs Act, 1962. 2. Brief facts of the case are that the appellant passenger namely Shri Mohammed Husain Ayyub Chilwan on arrival at CSI Airport, Mu .....

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by the adjudicating Authority and a penalty of ₹ 60,000/- under Section 112(a) & (b) of the Customs Act, 1962 was imposed on the appellant. 3. Being aggrieved by the impugned order passed by the Additional Commissioner, CSI, Airport, Mumbai, the passenger Shri Mohammed Husain Ayyub Chilwan has filed the appeal through his Advocate Brijesh R. Pathak on the grounds which inter alia include that the adjudicating authority has not taken into consideration all the aspects of the case; .....

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lcutta v. Star Enterprises 1997 (94) E.L.T. 217 and 2004 (168) E.L.T. 72 (Tri- Chennai). 4. Hearing in the matter was held on 17-11-2016, Shri Brijesh R. Pathak, advocate appeared for the personal hearing on behalf of the appellant and reiterated the submissions in appeal memo. The advocate submitted that gold was brought for sister s marriage and not for any trading and that he is not a habitual offender. The advocate submitted copy of A. Rajkumari v. CC (Airport) Chennai - 2015 (321) E.L. .....

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orking abroad but he is not eligible passenger under Customs Notification No. 12/2012 Sr. No. 321 condition No. 35, Besides the eligible passenger is to file the mandatory declaration in the prescribed format before the Customs Officer. The gold recovered was not declared to Customs and the same amounts to violation of Section 77 of Customs Act, 1962 read with Baggage Rules, 1998 and relevant Policy provisions which render the goods liable for confiscation and the passenger is liable for penalty .....

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wing redemption of gold in similar cases. 6. In this regard I find that Section 125 of Customs Act, 1962 provides that in case of prohibited goods the adjudicating authority may give an option of redemption and in this way he has discretionary power but for other than prohibited goods the adjudicating authority has to give option to pay fine in lieu of confiscation and in this way the adjudicating authority shall allow redemption to the offender: Whenever confiscation of any goods is author .....

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Section 125 of CA, 1962, shows that an option has to be given to the owner of the goods or where the owner is not known, to the person from whose possession or custody such goods have been seized. In the matter before me also, the appellant had claimed ownership of gold and had produced copy of purchase invoice. I also find that there is no indication in the order passed by the adjudicating authority that anybody else has claimed the goods or the passenger had brought the gold as carrier for som .....

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that in some other orders passed by adjudicating authority at Sahar Airport, Mumbai redemption was allowed where the gold was found concealed in underwear vide ADC/ML/ADJN/116/2014-15, dated 13-1-2015 in case of Mir Nabi Raza, concealed in belt tied to the waist vide JC/RR/ADJN/208/2014-15 in case of Choubache Chandre Davodra Vimal, concealed in false pocket of jeans vide ADC/ML/ADJN/21/2014-15, dated 18-6-2014 in case of Ali Bapu Abdul Mateen Mohiddin, concealed near the ankles of legs with th .....

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C/RR/ADJN/203/2015-16, dated 20-10-2015 in case of Mr. Syed Sulthan Abdul ; wrapped on the calf of both the legs vide JC/RR/Adjn/039/2015-16, dated 1-5-2015 in case of Amjad Khan Deshmukh etc. Therefore such selective approach which otherwise also is contrary to Section 125 of Customs Act and consistent view held by various judicial forums, cannot be held as legal and proper. 9. I find that there are series of judgments where redemption of absolutely confiscated gold/gold jewellery has been .....

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d on fine earlier, selective absolute confiscation is not called for asabsolute confiscation should be an exception rather than a rule. In CC (Airport), Mumbai v. Alfred Menezes - 2009 (242) E.L.T. 334 (Bom.), the Hon ble High Court held that Section 125(1) ibid clearly mandates that it is within the power of adjudicating authority to offer redemption of goods even in respect of prohibited goods. In Yakub lbrahim Yusitf - 2011 (263) E.L.T. 685 (Tri.- Mumbai) the Tribunal held that option of rede .....

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mption of gold being an item notified under Section 123 of Customs Act, 1962 or for any other reason. In P. Sinnasamy v. Commissioner of Customs, Chennai - 2007 (220) E.L.T. 308 (Tri. - Chennai), the Hon ble Court allowed redemption of absolutely confiscated gold observing that option to redeem the gold to be given as there is no bar against such option by reason of goods being an item notified under Section 123 of Customs Act, 1962 or for any other reason. In T. Elavarasan v. Commissioner of Cu .....

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C (Chennai) - 2015 (321) E.L.T. 540 (Tri.-Chennai) the redemption of 70 gold bars brought by concealing in air conditioner was allowed and fine was reduced to 14%. In Kadar Mydin v. Commissioner of Customs (Preventive), West Bengal - 2001 (136) E.L.T. 758 it was held that in view of the liberalised gold policy of the Government, absolute confiscation is unwarranted and redemption can be allowed. In Sapna Sanjceva Kohti v. Commissioner of Customs, Airport, Mumbai - 2008 (230) E.L.T. 305 the Tribu .....

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v. CC, Triehirapalli, 2007 (220) E.L.T. 311 (Tri-Chennai) also it was held that absolute confiscation is not warranted and redemption of gold should be allowed. 10. I find that the adjudicating authority has absolutely confiscated the gold relying on the judgment in the case of CC (Air), Chennai v. Samyanathan Murugesan - 2010 (254) E.L.T. A15 (S.C.) where 7.075 kgs. of gold ornaments concealed in a Television was absolutely confiscated. I further find that in the judgment dated 8-3-2010 i .....

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red the fact that Hon ble Apex Court vide judgment dated 8-3-2010 in case of Dhanak Ramji approved observation of Bombay High Court that : In our opinion, the issue whether the petitioner in W.P. 1022/09 herein, has established his title to the goods not relevant. No other person has claimed title in the goods. The petitioner alone has claimed title in the goods and! apart from that it is the petitioner who was found in possession of the goods. these circumstances, we cannot find any error of la .....

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is not an item the import of which in any circumstances would danger or be detriment to health, welfare or morals of people as whole, and therefore is liable to be released on payment of redemption fine since it does not cause danger or detriment to health. I found that the hon ble Apex Court in case of Sri Kumar Agency v. CCE, Bangalore - 2008 (232) E.L.T. 577 (S.C.) has held very categorically that : 5. Circumstantial flexibility, one additional or different fact may make a world of diffe .....

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