2009 (2) TMI 517 - AT - Customs

Confiscation, fine and penalty - Smuggling of gold - confiscation - show cause notice was issued alleging that the 2 biscuits seized from Shri Dinesh Khindria were brought by Shri Dinker Khindria, the same was not declared and the same were cleared out of the airport without payment of duty

Issues Involved:
1. Confiscation and redemption of gold biscuits.
2. Imposition of penalties under Section 112 of the Customs Act, 1962.
3. Compliance with Section 77 of the Customs Act, 1962.
4. Application of FERA Notification No. 111/92, Customs Notification No. 117/92, and ITC Order No. 83/90-93.
5. Validity and effect of RBI Circular No. 15 dated 30-3-1992.
6. Evaluation of evidence and credibility of statements and retractions.

Detailed Analysis:

1. Confiscation and Redemption of Gold Biscuits:
The Tribunal considered the appeals by Shri Dinker Khindria and Shri Dinesh Khindria against the order of absolute confiscation of 2 kg of gold each under Section 111(d) & (l) of the Customs Act, 1962. The Tribunal noted that the gold was brought without declaration and without payment of duty. The Tribunal also referenced a prior decision allowing redemption of gold on payment of a fine for a co-passenger, Shri Mohit Thakore, under similar circumstances. The Tribunal held that while the gold was liable for confiscation, the option to redeem should be given as the importation was not prohibited for Shri Dinker Khindria. Consequently, the Tribunal allowed redemption on payment of a fine of Rs. 2,50,000/-.

2. Imposition of Penalties Under Section 112 of the Customs Act, 1962:
The Commissioner had imposed a penalty of Rs. 15,000/- each on Shri Dinker Khindria, Shri Dinesh Khindria, and Shri Mohit Thakore. The Tribunal upheld these penalties, finding that the appellants were involved in clandestinely clearing the gold. The retractions of their statements were deemed afterthoughts, and the penalties were considered appropriate given the circumstances.

3. Compliance with Section 77 of the Customs Act, 1962:
The Tribunal found that there was a violation of Section 77, which mandates the declaration of baggage. Shri Mohit Thakore did not declare the gold himself but had it declared through Shri Dinker Khindria. Although the duty was paid, the failure to declare the gold personally constituted a violation. This violation was a significant factor in the confiscation decision.

4. Application of FERA Notification No. 111/92, Customs Notification No. 117/92, and ITC Order No. 83/90-93:
The Tribunal analyzed these notifications and found that they allowed the import of gold as baggage subject to certain conditions. The Tribunal noted that these notifications did not distinguish between NRIs and other passengers. However, the Tribunal also recognized that the RBI Circular No. 15 created some ambiguity by distinguishing between NRIs and others regarding the six-month stay requirement.

5. Validity and Effect of RBI Circular No. 15 Dated 30-3-1992:
The Tribunal acknowledged the RBI Circular, which provided a different interpretation of the conditions for importing gold. The Circular indicated that the six-month stay requirement applied only to non-NRIs. Despite this, the Tribunal held that the Circular could not override the statutory notifications but should be considered in the context of mitigating factors.

6. Evaluation of Evidence and Credibility of Statements and Retractions:
The Tribunal examined the evidence, including the Panchnama and the statements of the appellants. The discrepancies pointed out by the appellants were not found significant enough to undermine the seizure's credibility. The Tribunal held that the retractions were afterthoughts and upheld the findings of the Commissioner regarding the clandestine activities and the seizure of gold.

Conclusion:
The appeals were disposed of by allowing the redemption of the confiscated gold on payment of a fine and upholding the penalties imposed. The Tribunal's decision was guided by the principle that while the gold was liable for confiscation due to non-declaration and non-payment of duty, the option of redemption should be provided as the importation was not prohibited for the appellants. The penalties were deemed appropriate given the clandestine nature of the activities and the afterthought retractions.

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