TMI Blog2022 (7) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... ion slip obtained from the petitioner and there is no specific rebuttal on the petitioner's assertion that no declaration slip is obtained from him. In fact, he was orally declared by the Customs Officers that he is carrying 3 gold bangles, totally weighing 150 grams for his family marriage, is not specifically denied. Further, it is not in dispute that the petitioner has returned from Singapore after 3 years. A statement has been recorded from him on 01.05.2022, which has been immediately refuted on 02.05.2022, as could be seen from the records. The petitioner had consistently taken a stand that he has been working in Singapore and got work permit and is also having a Bank Account for crediting his salary. With his earnings, he had purchased three gold bangles. He had also produced the invoice of the gold bangles to the authorities. Further, there is no concealment of gold in a baggage or body, which prima facie , shows that there is no smuggling and at the most, it is seized for non-declaration. Added to it, adjudication proceedings is yet to be completed. The Delhi High Court in Vaibhav Sampat More vs. National Investigation Agency, Through its Chief Investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said gold bangles, the petitioner arrived in Trichy Airport on 01.05.2022 vide 6E35. Immediately, on his arrival, he had declared before the Trichy Airport Custom Officers about the possession of three gold bangles, totally weighing 150 grams. The Customs Officers without accepting the same, had taken the petitioner's passport and made him to wait for more than three hours on the same day in the Airport. 3.Thereafter, when the Officers enquired the petitioner about his arrival and also his stay in Singapore, the petitioner informed that he is coming back to India after a period of 3 years and the above said gold bangles were purchased by him using his hard earned money in Singapore, vide the invoice furnished. Thereafter, the Officers had threatened the petitioner and informed him that he should sign in the undertaking letter, as if some other person had handed over the gold bangles for monetary consideration, which is not true. After the petitioner's repeated requests for release of gold bangles and return of passport, the third respondent had returned only the petitioner's passport and retained the gold bangles and informed that they are detaining the gold bang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities with fine under Section 112(a) of the Customs Act, 1962. 8.Further, the learned counsel for the petitioner relied upon a judgment of the Delhi High Court in Vaibhav Sampat More vs. National Investigation Agency, Through its Chief Investigation Officer [Crl.A.No.115 of 2022, dated 03.06.2022] and submitted that import of gold is not prohibited, but restricted subject to prescribed quantity on payment of duty. 9.In support of his submission, the learned counsel for the petitioner relied upon various judgments of this Court, wherein this Court consistently held that gold is not a prohibited item, but it is only a restricted item and it can be handed over to the owner or to the passenger from whom the same has been seized. 10.Further, the learned counsel for the petitioner relied on an order of this Court, dated 28.02.2021, made in W.P.No.1421 of 2011 [T.Elavarasan vs. The Commissioner of Customs (Airport), Anna International Terminal, Chennai and others] , wherein a direction has been sought to direct the second respondent therein to release 350 grams of assorted gold jewels viz., 7 gold chains on payment of duty as applicable for the passenger staying abroa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court as well as the learned Single Judges of this Court is to return the seized gold to the passenger/owner on payment of 50% of the duty. It was also further clarified that if the petitioners therein are found guilty, it is always open to the authorities to proceed further in the manner known to law. 12.The learned counsel for the petitioner further submits that once the gold is seized by the proper officers under Section 110 of the Customs Act, 1962, the petitioner is entitled to release of the gold, which are detained pending adjudication proceedings, in terms of Section 110-A of the Customs Act, 1962. As per Section 110-A of the Customs Act, 1962, any goods, documents or things seized or bank account provisionally attached, pending the order of the adjudicating authority, may be released to the owner or the bank account holder on taking a bond from him in the proper form with such security and conditions as the adjudicating authority may require. Thereafter, even in the case of option to pay fine in lieu of confiscation, Section 125 of the Customs Act, 1962 will come into play. As per Section 125 of the Customs Act, 1962, whenever confiscation of any goods is authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the next day, i.e., on 02.05.2022, on the advice of some one, retraction statements have been given. He further submits that the retraction statements are also identical, which confirms that they are all linked by a person and on his advice, the statements have been given. Further, if the passenger had shown a bill, the Customs Officers would not have detained the gold items and after collecting appropriate customs duty from the petitioner, the gold bangles would have been handed over to him. Further, there is no declaration slip given by the petitioner for carrying on the gold items and there was no foreign currency available with him to pay the duty, which confirms that the petitioner and others are only carriers. The gold bangles were seized by drawing a Mahazar in the presence of two independent witnesses. The petitioner's retraction cannot be accepted. The invocation of Section 110-A of the Customs Act, 1962 is applicable only to the owners of the gold bangles and not for carriers. After following the seizure, the adjudication proceedings should be initiated against the petitioner and other passengers. The petitioner has to make all his submissions before the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has returned from Singapore after 3 years. A statement has been recorded from him on 01.05.2022, which has been immediately refuted on 02.05.2022, as could be seen from the records. The petitioner had consistently taken a stand that he has been working in Singapore and got work permit and is also having a Bank Account for crediting his salary. With his earnings, he had purchased three gold bangles. He had also produced the invoice of the gold bangles to the authorities. Further, there is no concealment of gold in a baggage or body, which prima facie , shows that there is no smuggling and at the most, it is seized for non-declaration. Added to it, adjudication proceedings is yet to be completed. 19.Be that as it may, the Hon'ble Apex Court in the case of Commissioner of Customs vs. Atul Automations Pvt. Ltd. [supra] distinguished the prohibited item from restricted item. It would be apposite to extract below Paragraph 9 of the said judgment:- ''9.Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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