2018 (4) TMI 1658 - CGOVT - Customs

Redemption of confiscated goods - Gold - revision application is filed mainly on the grounds that the applicant had brought the gold for self use only from Dubai, gold was not concealed, it was declared at the red channel, his actions/omissions are not covered under Sections 111(d), (l) and (m) of the Customs Act, 1962, therefore, the gold has been wrongly confiscated - Held that - The applicant s request for re-export of the confiscated gold is also not maintainable as this request was not placed before the Commissioner (Appeals) as per order-in-appeal and even in the revision application no such claim has been made. The Government being the revisionary authority only, the scope of revision application has to be restricted to the correctness of the order in the light of factual and legal background of the case considered by the Commissioner (Appeals) and not beyond it. Since the request of re-export was not made before Commissioner (Appeals) and he did not have any occasion to consider this aspect, this request made before the Government for the first time cannot be entertained in the revisionary proceeding. Even otherwise also the request for re-export can be permitted under Section 80 of the Customs Act, 1962 only when the passenger intended to return from India to the foreign country along with detained goods after a short visit to India as a tourist or otherwise. But in the instant case the applicant is an Indian citizen residing in Delhi and had gone to Dubai for a short visit of two months only. Thus he did not return from India to Dubai after a short visit as envisaged in Section 80 of the Customs Act and thereby there is no rational for re-exporting the gold to Dubai where he or his family is not presently staying. Government does not find any fault in the order of Commissioner (Appeals) - revision application rejected.

Summary

Issues:
1. Confiscation of gold and imposition of penalties under the Customs Act, 1962.
2. Applicability of Sections 111(d), (l), and (m) of the Customs Act, 1962.
3. Eligibility criteria for importing gold as part of baggage under the Baggage Rules.
4. Interpretation of prohibition under the Customs Act, 1962.
5. Request for re-export of confiscated gold.

Analysis:
1. The case involves a revision application against an Order-in-Appeal allowing redemption of confiscated gold on payment of fines and penalties. The applicant contested the confiscation, arguing that the gold was for personal use, declared at customs, and not in violation of specific sections of the Customs Act, 1962.

2. The applicant claimed that the gold import did not fall under Sections 111(d), (l), and (m) of the Customs Act, 1962. However, the government found that the applicant did not meet the eligibility criteria for importing gold as baggage, as per Notification No. 12/2012. The applicant's misunderstanding of "prohibition" under the Act was clarified, leading to the conclusion that the gold was illegally imported, justifying confiscation and penalties.

3. The Baggage Rules specify that only bona fide household goods and personal effects can be imported without an Import Export code. Gold, other than ornaments, is not allowed as part of baggage under these rules. Since the applicant did not meet the criteria and imported the gold without the required code, Section 111(d) of the Customs Act applied, leading to confiscation and penalties.

4. The government highlighted the distinction between "prohibition" and "prohibited goods" under the Customs Act, emphasizing that the applicant's misunderstanding of these terms was crucial. Prohibition under the Act refers to general import/export regulations, not just prohibited goods like ammunition or drugs. The illegal import of gold by the applicant was rightly confiscated under Section 111(d), with the penalty under Section 112 being correctly imposed.

5. The request for re-export of confiscated gold was deemed not maintainable as it was not raised before the Commissioner (Appeals) or in the revision application. The government clarified that re-export could only be permitted under specific conditions outlined in Section 80 of the Customs Act, which did not apply to the applicant's case. Therefore, the revision application was rejected, upholding the Commissioner (Appeals) order.

This detailed analysis covers the issues surrounding the confiscation of gold, the application of relevant sections of the Customs Act, eligibility criteria for importing gold, interpretation of prohibition, and the request for re-export, leading to the rejection of the revision application.