2008 (7) TMI 701 - AT - Customs

Summary

Issues Involved:
1. Confiscation of gold bars and gold jewelry.
2. Confiscation of the aircraft.
3. Imposition of penalties on M/s. Biman Bangladesh Airlines, Captain Ishtiaque Hussain, and Crew J/P Mrs. Nazma Chowdhury.
4. Alleged connivance of the airline staff in smuggling activities.

Detailed Analysis:

Confiscation of Gold Bars and Gold Jewelry:
The case began when gold bars and gold jewelry were discovered concealed in various parts of an aircraft arriving from Dhaka at NSCBI Airport. The Customs Officers at NSCBI Airport recovered 32 pieces of gold bars weighing 3712 grams and gold jewelry weighing 17169 grams from the aircraft. Following the investigation, show cause notices (SCNs) were issued to the passengers and airline staff. The Commissioner of Customs ordered the absolute confiscation of the seized gold bars and jewelry under Section 111(d), 111(e), and 111(f) of the Customs Act, 1962, as they were brought into Indian territory without legal documents.

Confiscation of the Aircraft:
The aircraft was ordered to be confiscated under Section 115(2) of the Customs Act, 1962, as it was used as a means of transport for smuggling the gold. However, the owner of the aircraft was given an option to redeem it on payment of a redemption fine of Rs. 20,00,000/-. The Adjudicating Authority concluded that the concealment of gold in the medical box and other areas of the aircraft could not have occurred without the knowledge of the crew, thus attracting the provisions of Section 115 of the Customs Act.

Imposition of Penalties:
Penalties of Rs. 1,00,000/- each were imposed on M/s. Biman Bangladesh Airlines, Captain Ishtiaque Hussain, and Crew J/P Mrs. Nazma Chowdhury. Additionally, penalties of Rs. 5,00,000/- each were imposed on the accused passengers. The penalties were based on the failure of the airline staff to take precautionary measures, which allegedly led to the concealment of the gold by the passengers.

Alleged Connivance of Airline Staff:
The Department argued that the Captain and Crew were informed by Bangladesh Customs about the gold being carried by the passengers and were instructed to hand over the passengers and the gold to Kolkata Customs. The concealment of the gold in the aircraft was seen as an indication of the crew's connivance. However, the appellants argued that they were not aware of the passengers' actions and had complied with the requests of Bangladesh Customs by handing over the sealed envelope and passengers to Kolkata Customs.

Judgment:
The Tribunal found that the case against M/s. Biman Bangladesh Airlines and its Captain and Staff was made without correct appreciation of facts and without tangible evidence. The Tribunal noted that the impugned gold was not seized by Bangladesh Customs but handed over to the passengers, and the primary duty of the Captain and Crew was to fly the aircraft and attend to passengers, not to act as escorting Customs officials. The Tribunal concluded that there was no evidence of connivance by the airline staff and that the concealment could have been done by the passengers without the crew's knowledge. The Tribunal set aside the confiscation of the aircraft and the penalties imposed on M/s. Biman Bangladesh Airlines, Captain Ishtiaque Hussain, and Crew J/P Mrs. Nazma Chowdhury, allowing the appeals.

Conclusion:
The Tribunal allowed all three appeals, setting aside the penalties and confiscation orders against M/s. Biman Bangladesh Airlines, Captain Ishtiaque Hussain, and Crew J/P Mrs. Nazma Chowdhury, due to the lack of evidence of their involvement in the smuggling activities. The judgment emphasized the importance of tangible evidence and correct appreciation of facts in adjudicating such cases.