2012 (8) TMI 899 - CGOVT - Customs

Confiscation of goods - Penalty u/s 112 - violation of provisions of Sections 77, 79 and 11 of Customs Act, 1962 read with provisions of Foreign Trade Policy 2009-2014 and Section 3(3) of Foreign Trade (Development & Regulation) Act, 1992 - Held that - Passenger is neither a habitual offender nor carrying the said goods for somebody else. He is the owner of the goods and concealment was not is an ingenious manner. There is a merit in the pleading of applicant that goods should be allowed to be redeemed on payment of redemption fine and therefore said plea is acceptable. As regards, the pleading to release the laptop unconditionally, Government finds that one laptop computer is allowed to be imported duty free by every passenger in terms of Notification No. 11/2004-Cus., dated 8-1-2004. So there is no case for its confiscation. Government therefore set aside the confiscation of said laptop computer and allows its duty free clearance. The confiscation of other mobiles/I-Phone is upheld. However, combined redemption fine in respect of mobiles/I-phone is modified to ₹ 6,000/. - Decided partly in favour of assessee.

Issues Involved:
1. Absolute confiscation of gold jewellery.
2. Delay of 22 days in filing the appeal.
3. Confiscation of laptop and mobile phone.
4. Imposition of penalties under Sections 112 and 114A of the Customs Act, 1962.

Detailed Analysis:

1. Absolute Confiscation of Gold Jewellery:
The applicant arrived at Rajiv Gandhi International Airport, Hyderabad from Dubai with gold ornaments weighing 2264 grams, valued at Rs. 30,96,444/-, which were confiscated under Section 111(a)(l)(m) of the Customs Act, 1962. The applicant argued that he was an "eligible passenger" under Notification No. 31/2003-Cus., dated 1-3-2003, and harbored a bona fide belief that he could import the gold. The adjudicating authority, however, found that the gold jewellery imported in excess of the prescribed limit and in commercial quantity did not constitute bona fide baggage under Section 79 of the Customs Act, 1962. The government noted that the gold was not concealed in an ingenious manner and the applicant was not a habitual offender. Therefore, the gold should be allowed to be redeemed on payment of a redemption fine of Rs. 7,50,000/- under Section 125 of the Customs Act, 1962.

2. Delay of 22 Days in Filing the Appeal:
The applicant's appeal was initially rejected as time-barred due to a delay of 22 days. The applicant explained that the delay was due to personal difficulties, including the illness of his mother. The government referred to the Supreme Court judgment in the case of Collector Land Acquisition Anantnag & Other v. Mst. Katiji and Others - 1987 (28) E.L.T. 185 (S.C.), which held that delays within condonable limits should be condoned if justified. The government found the reasons provided by the applicant to be valid and condoned the delay.

3. Confiscation of Laptop and Mobile Phone:
The laptop and mobile phone were also confiscated but allowed redemption on payment of a redemption fine. The applicant argued that one laptop computer is allowed to be imported duty-free by every passenger under Notification No. 11/2004-Cus., dated 8-1-2004. The government agreed and set aside the confiscation of the laptop, allowing its duty-free clearance. However, the confiscation of the mobile phone was upheld, but the combined redemption fine for the mobile phone was modified to Rs. 6,000/-.

4. Imposition of Penalties under Sections 112 and 114A of the Customs Act, 1962:
A penalty of Rs. 5,00,000/- under Section 112 and Rs. 1,00,000/- under Section 114A of the Customs Act, 1962, was imposed on the applicant. The applicant argued that the penalty under Section 114A was not applicable as it pertains to false documents submitted by an exporter to the DGFT for procuring a genuine licence. The government found merit in this argument and set aside the penalty under Section 114A. The penalty under Section 112 was considered on the higher side and was reduced to Rs. 3,00,000/-.

Conclusion:
The government allowed the redemption of the gold jewellery on payment of a redemption fine of Rs. 7,50,000/-. The delay in filing the appeal was condoned. The confiscation of the laptop was set aside, allowing its duty-free clearance, while the confiscation of the mobile phone was upheld with a modified redemption fine of Rs. 6,000/-. The penalty under Section 114A was set aside, and the penalty under Section 112 was reduced to Rs. 3,00,000/-. The revision application was disposed of in these terms.

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