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TMI Blog2025 (5) TMI 1537X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms counters for declaration of gold/silver coins, jewellery, promissory notes, silverware etc. brought in their baggage. Upon proper examination of the goods declared by the aforesaid passengers, and as the passengers did not possess any invoice for its purchase from any auction house, or acquisition from any private party, the customs authorities at the airport had detained part of the goods, while allowing clearance of silverware, gold jewellery, gold bars, gold coins on payment of applicable duty under Notification No.03/2012- Customs dated 16.01.2012, against three baggage receipts prepared by the department. However in respect of 144 gold coins, 1190 silver coins, 556 coins of other metals and 239 promissory notes, since these were in the nature of prohibited goods, in order to obtain No Objection Certificate (NOC) from Archaeological Survey of India (ASI), for appropriate valuation of goods and for further necessary action under the Customs statute, these goods were detained by the department, vide Detention Receipt A-39842 dated 18.01.2012. 2.2 After examination of the articles sent to ASI, it was reported by the Superintending Archaeologist (Customs), ASI Mumbai, by gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , rarity, grade, popularity, demand and current market prices of material. 2.3 Based on the report from ASI Mumbai, the Department interpreted that the imported coins which are detained by Customs, as 'antique coins' classifiable under Customs Tariff Item (CTI) 9706 0000, the import of which is subject to the condition stipulated in the Exim policy vide Notification No. 97(RE-2008)/2004-2009 dated 17.03.2009, which state that 'the importer must abide by the rules/laws relating to export of such item of the country from where the imports are sought to be made'. Accordingly, customs authorities at CSMI airport sought from the appellant passenger vide their office letter dated 04.04.2012, to furnish a European Union License for Export of Coins of archaeological importance from UK to India. Since, the appellant could not produce any such license and for noncompliance of the Exim policy condition, the Department had issued Show Cause Notice (SCN) dated 14.01.2013 proposing for confiscation of gold/ silver coins, coins of other metals, promissory notes, being liable for confiscation under sections 111(d), 111(l) and 111(m) of the Customs Act, 1962 and for imposition of penalty under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts carrying the said goods out of UK and allowed the appellant to leave their country (UK) with the said goods, which establishes that the appellants action of taking the goods out of UK did not involve any violation, and was in accordance with the laws of UK. He further submitted that the procedures and guidelines for exporters of works of art and other cultural goods out of UK, published in 'UK Export Licensing for Cultural Goods' provide that export license from UK was not required for 'nonarchaeological cultural goods' where the value of individual item was less than the specified threshold limit of GBP 40,530/-. Therefore, he submitted that disputed goods detained by the customs authorities are well within the threshold limit prescribed by the UK government. He further stated that the appellant had brought the disputed goods, which were collected by his family the last 30 years in UK, mainly collected from coin dealers and in open market. He has also submitted 210 photographs of coins of gold, silver and other metal and promissory notes to say that these were collected over a period of time and it is not possible to obtain invoices for these items. 3.4 Learned Consultant al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore he requested that the appeal filed by the appellant is liable to be dismissed. 5. We have heard both sides and perused the case records and additional paper books submitted in this case by both sides. 6.1 The issue involved herein is to decide, whether the confiscation of the impugned goods consisting of 144 gold coins, 1190 silver coins, 556 coins of other metals, 239 promissory notes under Section 111(d), 111(l) and 111(m) of the Customs Act, 1962 and imposition of penalties on the appellant under Section 112(a) and 114AA ibid, by the learned adjudicating authority is sustainable or not? While dealing with this issue, we are also called up to examine the issue raised by the appellant that the classification of impugned goods brought in by him is correctly classifiable under Customs Tariff Item (CTH) 9803, as claimed by him as baggage; or, is it classifiable under Customs Tariff Heading (CTI) 9706 0000 as determined by the learned Commissioner of Customs in the impugned order. 6.2 In order to address the above issues, we would like to refer the relevant legal provisions contained in the Customs Act, 1962; the Customs Tariff Act, 1975 and rules framed thereunder, for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal importations by air or post; ship stores NOTES : 1. This Chapter is to be taken to apply to all goods which satisfy the conditions prescribed therein, even though they may be covered by a more specific heading elsewhere in this Schedule. xxx xxx xxx xxx Chapter Heading Description of goods (1) (2) 9803 00 00 ALL DUTIABLE ARTICLES, IMPORTED BY A PASSENGER OR A MEMBER OF A CREW IN HIS BAGGAGE 6.3 From plain reading of the above legal provisions, it transpires that all goods/dutiable articles brought into the country, by a passenger shall be dealt in as per the provisions of Chapter XI of the Customs Act, 1962. In terms of the extant rules made thereunder, which was in force at the relevant time of dispute i.e., Baggage Rules, 1998, provided restrictions relating to import of jewellery, in respect of a passenger residing abroad for more than one year, on return to India, by allowing duty free clearance in his bona fide baggage of jewellery upto a weight, of twenty grams with a value cap of fifty thousand rupees, if brought by a gentleman passenger, or forty grams with a value cap of one lakh rupees if brought by a lady passenger. Further, any passenger of Indian or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration (O.D) of the passenger and thereafter countersigns/ stamps the same, after taking the passenger's signature. In order to identify the frequent "short visit" passengers the Customs Officer also scrutinizes the passport/ other travel documents of the passengers. The declaration of goods and their values is generally accepted and duty assessed. On payment of applicable duty the passenger is allowed clearance. 6.5 Further, any passenger found mis declaring the quantity, description or value of dutiable goods at the "Red Channel" is liable to strict penal action including arrest/prosecution apart from seizure/confiscation of the offending goods depending upon gravity of violation detected. In case the passenger brings any goods in baggage that are essentially for trade/ commerce and not for personal use, or imports goods in commercial quantity, these goods become liable to confiscation and the passenger is also liable to strict penal action. Only bonafide baggage items for personal use or use by members of his family are allowed to be imported as baggage. In case of frequent "short visit" passengers and repeat offenders, the Customs officers would impose higher levels of fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd countersigned by Air Customs Supdt. (ACS) and AC/DC of Customs on duty on 18.01.2012. The detained goods were also sealed with Customs Seal No. 120 and warehoused by the Customs officer under APS No. M.III/3199/2012 dated 18.01.2012. Further, it is also evident from the various correspondence which the Customs Department at CSMI airport had with ASI and other authorities, that the impugned goods were not certified as antique and the opinion given by Superintending Archaeologist, ASI, Mumbai is that the issue of clearance of impugned goods has to be decided by the customs Department. The extract of the opinion given by ASI and as mentioned in the SCN, is as follows: "No doubt the antiquities are valuable having composition of modern to punch mark coins, but since these are imported to our country, we cannot stop them. Therefore, Customs Department may take action as per their legislation Sd./ 23.02.2012 Superintending Archaeologist (Customs) Archaeological Survey of India Sion East, Fort, Mumbai - 400 022." 8.1 It is evident from the SCN dated 14.01.2013, that despite there being no credible evidence to suggest that the detained goods are of antique coins, and that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trade Policy. However, the policy condition attached to import of such items are that the importer must abide by the relevant rules/laws relating to export of such items of the country from where the imports are sought to be made. It also transpires that above policy condition is applicable at the time of export from the relevant country of export for import into India. 8.3 In the present case, the facts indicate that the coins of gold/silver or other material and promissory notes were brought in by the appellant as passenger as his personal accompanied baggage. Therefore, it is logical to conclude that when the passenger had carried the impugned goods from the airport of departure abroad, it is presumed that these have been duly subjected to various legal requirements of the country of export at UK, including the requirement of licensing for export or taking out of that country. It is also on record that the learned Consultant for the appellant, had held correspondence with HM Revenue and Customs, and it was informed by the Customs, International Trade and Excise (CITEX), through e-mail dated 21.02.2013 sent by one Mr Robert White that 'HRMC imposes no restrictions on the export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, held by a collector of numismatic materials (numismatist). Therefore, we are of the considered view, that the impugned goods are in the nature of personal baggage, and not of the nature of commercial goods. Further, in the absence of any specific and independent evidence or proof, to state that the impugned goods are 'antique', we find that the action of the learned Commissioner of customs in treating the goods as 'antique' and applying the import policy condition, does not stand the scrutiny of law. Further, there is neither any material to state that the appellant passenger had violated the legal requirements at the airport of departure, nor proceedings were initiated or objection raised by HRMC/Customs authorities abroad, in respect of their bringing into India such coins of gold/silver/other material. Hence, we are of the considered view that the action taken by the learned Commissioner in confiscation of the goods, treating the same as 'prohibited goods' under Section 111(d) ibid does not stand the scrutiny of law. Further, it is a fact on record that the complete description of the goods have been inventoried by the customs officers at the time of preparing baggage receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t restrict importation of gold/silver coins, and therefore the finding given by the adjudicating authority that the same is irrelevant and not worth of consideration, is incorrect, as the circulars are issued by the CBIC in exercise of the powers under Section 151A of the Customs Act, 1962 for uniformity in application of customs statute. 8.7 It is submitted by the learned Consultant for the appellant that the adjudicating authority had not examined the witnesses, and offered an opportunity for cross examination, as per the provisions of Section 138B of the Customs Act, 1962. In this context, we find that the Hon'ble Delhi High Court, in the case of J&K Cigaratte v. Collector of Customs - 2009 (242) E.L.T. 189 = 2011 (22) S.T.R. 225 (Del.), while dealing with Section 9D(1) of the Central Excise Act, 1944 (Pari materia to Section 138B of the Customs Act, 1962) have held that the procedure as prescribed in the statute is required to be followed for proving the truth of the statement. The said decision of the Hon'ble Delhi High Court has also been relied upon by the Hon'ble Punjab & Haryana High Court, in the case of G-Tech Industries v. Union of India - 2016 (339) E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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