TMI Blog2024 (1) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. Commissioner for absolute confiscation of gold chains legally not correct. Further 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. In the case of YAKUB IBRAHIM YUSUF VERSUS COMMISSIONER OF CUSTOMS, MUMBAI [ 2010 (10) TMI 650 - CESTAT, MUMBAI] , it has been held that prohibited goods refers to goods like arms, ammunition, addictive drugs, whose import in any circumstance would danger or be detriment to health, welfare or morals of people as whole, and makes them liable to absolute confiscation. It does not refer to goods whose import is permitted subject to restriction, which can be confiscated for violation of restrictions, but liable to be released on payment of redemption fine. The gold does not fall under the prohibited category and therefore it cannot be absolutely confiscated. In the present case considering the facts and circumstances, the order of absolute confiscation is not sustainable in law and therefore the order of absolute confiscation is set aside and an option given to the appellant to redeem the Gold Chains on payment of redemption fine of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers further detained foreign currency amounting to USD 11325 on 24.02.2015 recovered from his hand baggage. As the foreign currency was in excess of USD 5000 and not declared as per Regulation 6 of the Foreign Exchange Management (Export and Import of Currency) Regulations, 2000, the currency was seized on 02.03.2015. Statement of Appellant was recorded on 24.02.2015. The Appellant was arrested on 25.02.2015 and the Hon ble High Court of Gujarat granted the regular bail on 19.06.2015. 1.3 It was alleged that the Appellant had contravened Para 2.20 of the EXIM Policy 2009-2014 as he had not imported bonafide goods as allowed under the provisions. There was a contravention of the provisions of Section 77 of the Customs Act, 1962 as he has not declared dutiable goods in his Customs declaration form on arrival and Rule 6(6) of FEMA as he had not declared the foreign currency which was excess of USD 5000. 1.4 A Show Cause Notice dated 20-08-2015 was issued to the appellant proposing confiscation of the seized gold and foreign currency and also to impose penalties. In adjudication, the Adjudicating authority ordered absolute confiscation of the 10 Gold Chains totally weighing 4999. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Hon ble Additional Chief Metropolitan Magistrate on 25.02.15 i.e. on the next day of his arrest. Since he was beaten up very badly by the officers of DRI, a request was made to the Hon ble Magistrate to direct for medical examination of the appellant in presence of police officers. Accordingly, medical examination was conducted by the medical officers of Government Hospital. It may be observed that even after two days of being beaten up, it is clearly found during medical examination that there is a abrasion(redness) on (Lt) left side of back of liver on the appellant s body. Therefore, it is quite clear that the statement and panchnama are not reliable as evidence. The statement although recorded under Section 108 of the Customs Act, 1962, before the DRI officer shall not have any evidence value because it is absolutely clear that it was not a voluntary statement. Further cross-examination of DRI officer Shri Rakesh Rajani who claims to have recorded statement of the appellant conducted before Hon ble Additional Chief Metropolitan Magistrate. On perusing the same, it may be observed that there are innumerable contradictions. The said officers have contradicted from the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has no effect. 2.3. He argued that it is pertinent to note that Notification No. 45/92-Cus (N.T.) dated 19.06.1992 Tourist Baggage (Amendment) Rules, 1992 was introduced. The term personal effect was particularly explained therein. It particularly illustrated that amongst other things personal jewellary is included in the scope of Personal Effects . Likewise, since unlike in the case Baggage Rules, 1994, Baggage Rules, 1998 did not contain definition of Personal Effects vide circular No. 72/98-Cus. dated 24.09.1998 issued from F.No. 520/136/92-Cus. VI, it was clarified that even for the purpose of Baggage Rules, 1998, more particularly Regulation 7, read with Appendix E, Personal Effects includes Personal Jewellary . It is also clarified in the said circular that Baggage Rules, 1998, allows only used Personal Effects of a tourist, however, it is not the intention of the Board to verify the newness of every product which a traveler brings so long as it is not prima-facie new goods in their original packing which can be disposed of off-hand. Thus, on perusing the aforesaid provisions, it may be observed that since the appellant who is a foreign tourist of Indian ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscated. However a redemption fine of Rs. 1,00,000/- is imposed. Considering the facts and circumstance that the same were brought with an intension to pay Custom duty on the Gold chains in question, if any was impossible and that there was no other ill-intension, the said Redemption Fine may be set aside as the same is not warranted. The Appellant shall take back the said USD 11,325 back to the UK himself or he may send the same back to the UK through some one. 2.8 He also submits that no penalty under Section 112(a) of the Customs Act, 1962 could be imposed on the appellant herein because appellant has not done or omitted to do any act which act or omission would render aforesaid goods liable to confiscation under Section 111, or that appellant has not abetted the doing or omission of such an act. Likewise, no penalty under Section 114AA of the Customs Act, 1962 could be imposed on the appellant herein because, the appellant has not either knowingly or intentionally made, signed or used, or caused to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purpose of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As per the above proviso, no appeal would lie before the Tribunal in respect of any order passed by Commissioner (Appeals) if such order relates to any goods imported or exported as baggage. In the present case, the appeal has been filed by the appellant against the order of Principle Commissioner of Customs, Ahmedabad and not against the order of Commissioner (Appeals), So it would not fall under sub-clause (b) of clause (1) of Section 129A of the Customs Act, 1962. Accordingly, the appeal is maintainable. 4.2 Having considered the rival contentions and on perusal of record I find that any passenger entering into India is required to make a declaration of his baggage before entering into India as provided under Section 77 of Customs Act, 1962. Further if it is found that the goods accompanying him which are also called as baggage, import of which is prohibited and in respect of which true declaration has been made under Section 77 the proper officer may at the request of the passenger detain such articles for the purpose of being returned to him on his leaving India under Section 80 of Customs Act, 1962. The revenue alleged that in the present case appellant signed the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no bar in allowing redemption 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 Customs (Airport), Chennai - 2011 (266) E.L.T. 167 (Mad.), the Hon ble High Court held that gold is not a prohibited item and option is available to owner of goods or person from whom goods seized, to pay fine in lieu of confiscation. In Union of India Vs Dhanak M. Ramji - 2009 (248) E.L.T. 127 (Bom.) affirmed vide 2010 (252) E.L.T. A102 (S C.) it was held that gold is not a prohibited item and discretion of redemption can be exercised to the person from whom it was recovered. In A. Rajkumari v. CC (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and give an option to the appellant to redeem the Gold Chains on payment of redemption fine of Rs.3,00,000/- 4.6 As regard the confiscation of foreign currency worth USD 11,325, I find that Section 111 of the said Act, under which the impugned foreign currency has been confiscated, which provides for confiscation of improperly imported goods. Thus, unless the improper importation is proved with evidence, the said section is not applicable, there is no evidence on record to prove that the impugned foreign currency was improperly imported. Mere improper procurement, if at all, in contravention of FEMA, will not attract Section 111 of the said Act. Hon ble Tribunal in the case of CC v. L. Rajkumar, reported at 2014 (312) E.L.T. 99 (Tri.-Chennai), in para 15, has held as under:- The above section [i.e. Section 111(d)] makes it amply clear that the goods are liable to confiscation under Customs Act if the goods are imported or attempted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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