TMI Blog2018 (8) TMI 1540X X X X Extracts X X X X X X X X Extracts X X X X ..... w-cause notice - Further, the appellants are not frequent flyers as per their travel documents and they were wearing the jewellery in a usual manner and have not concealed in a manner that it cannot be detected by ordinary means. The gold is not a prohibited item. It can be imported only with certain conditions as prescribed under Exim Policy as well as guidelines laid down by the RBI. Te order of absolute confiscation is not sustainable in law - the order of absolute confiscation in both the cases is set aside and an option given to the appellant to redeem the goods on payment of redemption fine and penalty u/s 112(a) and Section 114AA of CA. Appeal allowed in part. - C/21096, 21113/2016-SM - Final Order No. 21174-21175/2018 - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which resulted in detection of a gold chain, a gold kada and a gold coin (impugned goods recovered from Shri R.N. Palaksha) and gold chain (impugned goods) around the neck of Shri K.R. Maheshkumar under their over garments so as ensure that the impugned goods are not visible to others. On enquiry, the appellants accepted the fact that the impugned jewellery made of gold was being carried by them from Dubai; that the impugned gold jewellery was made of gold weighing 507.650 grams 349.00 grams of 23 carat / 99.50 purity, respectively with a clear intention to smuggle without declaring the same to the Customs, with an intention to evade payment of customs duty payable thereon. The impugned jewellery available with the appellants was seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and perused records. 4.1. Learned counsel for the appellants submitted that the impugned order has been passed in gross violation of the principles of natural justice as the appellants have not been heard in person and they have not been issued the show-cause notice after obtaining their statement under coercion. He further submitted that the appellants are innocent as there is no antecedents against them so as to treat the impugned goods to be smuggled. He further submitted that it is unambiguous and clear from Section 124 of Customs Act that there should be oral notice, at least, even if the affected waives written show-cause notice. It is mandatory under the same legal provision that opportunity of personal hearing should be granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also ignorant of the legal provisions in respect of the same, they deserve lenience. He further submitted that hiding or concealing of items in unusual and ingenious manner like rectum concealment, shoe sole concealment, false bottom concealment, concealment inside mixie, concealment inside refrigerator / TV / motor etc. of the kind are held to be concealment done consciously. These kinds of concealments have been recognized as concealment by interpreting law and facts. In support of this submission, he relied upon the following decisions:- i. DRI Vs. Pushpa Lekhumal Tolani [2017(353) ELT 129 (SC)] ii. Pushpa Lekhumal Tolani Vs. Addl. Commissioner of Customs [2008(227) ELT 368 (Del.)] iii. Mohammad Hussain Ayyub Chilwan [20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even if a show-cause notice is waived, even then, a oral show-cause notice and an opportunity of hearing should be granted to the affected party, if the goods are liable for absolute confiscation. Whereas in this case, the goods have been absolutely confiscated without issuing the show-cause notice. Further I find that the appellants are not frequent flyers as per their travel documents and they were wearing the jewellery in a usual manner and have not concealed in a manner that it cannot be detected by ordinary means. The decisions relied upon by the appellants wherein it has been held that how the concealment is normally resorted to for the purpose of avoiding the payment of customs duty. I also find that the gold is not a prohibited ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keeping in view of my above discussion, I am of the considered view that in the present case considering the facts and circumstances, the order of absolute confiscation is not sustainable in law and therefore I set aside the order of absolute confiscation in both the cases and give an option to the appellant to redeem the goods on payment of redemption fine of ₹ 3 lakhs (Rupees three lakhs only) in the case of appellant Shri R.N. Palaksha and ₹ 2 lakhs (Rupees two lakhs only) in the case of appellant Shri K.R. Maheshkumar. As far as penalties imposed on them for violation of Section 112(a) and Section 114AA is concerned, I uphold the penalties on both the appellants. Consequently, both the appeals are disposed of on the above te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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