2016 (6) TMI 70 - CGOVT - Customs

Seeking setting aside of impugned order-in-original and Commissioner (Appeals) order - Rejected as infructuous on the ground of merger - Held that - Government finds merit in the contention of the Department that question of merger does not arise as the issue on which the impugned Order-in-Original is challenged by them was not a matter of consideration in Order-in-Appeal 331/2015 date 24.06.2015. In this regard, government finds support in several judicial pronouncements. Government, therefore, holds that the Department and passenger appealed against the Order-in-Original on distinct grounds, the doctrine of merger is not attracted as it would tantamount to points raised by department remaining unanswered. The commissioner (Appeals) has thus erred in rejection Department s appeal as infructuous on ground of merger and the same cannot be held as legal and proper. Therefore, Government one proceeds to decide both the revision Applications filed by the Department on merit. Absolute confiscation of gold and imposition of penalty - Illicit import of gold - Gold smuggled by way of concealment and by ways of non-declaration knowing well that she was not an eligible passenger to import gold - Whether the import of impugned goods is prohibited or not - Held that - the respondent was not eligible to import gold either in terms of Notification 12/2012-Cus dated 17.03.2012 nor under Rule 6 of Baggage Rules ibid. She also did not declare the impugned gods that were in a substantial/ commercial quantity. Hence, the some cannot be treated a bona fide baggage in terms of Section 79 of the act ibid. the said gold Imported in violation of foreign Trade provisions of Sections 77,79,11 of Customs Act, 1962; para 2.20 of Exim policy of 2009-14 and provisions of Section 3(3) and 11(1) of Foreign trade (Development & regulation) Act, 1992. The same would thus appropriately constitute prohibited goods liable to confiscation under Section 111 (d) and (i) of the Customs Act, 1962. Therefore, the Government upholds the Department s contention that absolute confiscation is legally warranted. Whether the respondent is the owner or carrier of the impugned gold - Held that - there is no dispute about the fact that in her statement, the respondent has clearly admitted that she imported 1375 grams of 24 carat gold which was given to her by her husband who asked her to conceal it in her bra by wrapping it in a tissue paper and polythene cover and take them to India without declaring to customs, to be handed over to Shri Shaik Mahaboob Basha who would come to their home in India and in turn would give her ₹ 1,00,000/-. therefore, it is clear from her statement that respondent is not the owner of the goods and has acted as a carrier merely for a consideration. Government also notes that statement given before Customs is a valid evidence and any subsequent submission is only an afterthought in a attempt to get goods released on payment of fine. Government further finds that the provision for re-export of baggage is available under Section 80 of the Customs Act, 1962. However, this Section is applicable only to cases of bonfire baggage declared to Customs, which the applicant failed to do. Thus the applicant is not eligible for re-export of impugned goods. There is force in Department s contention that allowing ridding of offending goods and allowing re-export even when caught by Customs has the effect of making smuggling an attractive proposition. Hence, the Government is of the view that the order of commissioner (Appeals) allowing and upholding the request of the respondent for re-export of goods is not legal and proper and cannot be allowed. Therefore, Government holds that both the original and appellate authorities have erred in allowing re-export of the impugned goods on payment of redemption fine and therefore, allows Department s appeal for absolute confiscation of the impugned gold. Considering the gravity of the offence, the penalty of ₹ 2,50,000/- imposed on respondent under Section 112 of the Customs Act, 1962 by the original authority is also restored and upheld. - Decided in favour of revenue

Issues Involved:
1. Legality of the Order-in-Appeal reducing redemption fine and penalty.
2. Eligibility of the passenger to import gold.
3. Whether the gold should be absolutely confiscated or allowed for re-export.
4. Determination of the passenger as the owner or carrier of the gold.
5. Validity of the statement recorded under Section 108 of the Customs Act.
6. Application of the doctrine of merger in the appeals.
7. Whether the impugned goods are prohibited under the Customs Act.

Detailed Analysis:

1. Legality of the Order-in-Appeal Reducing Redemption Fine and Penalty:
The Department contended that the Order-in-Appeal reducing the redemption fine from Rs. 17,50,000/- to Rs. 7,00,000/- and the penalty from Rs. 2,50,000/- to Rs. 1,00,000/- was neither legal nor proper. The appellate authority's decision to allow re-export of the gold on payment of reduced fine and penalty was challenged on the grounds that it undermines deterrence against smuggling.

2. Eligibility of the Passenger to Import Gold:
The passenger did not declare the gold to Customs and failed to meet the conditions stipulated under Notification No. 12/2012-Cus dated 17.03.2012 and Rule 6 of the Baggage Rules, 1998. The passenger was ineligible to import gold as she did not stay abroad for the required duration and did not possess foreign currency to pay the duty.

3. Absolute Confiscation vs. Re-export:
The Department argued that the gold should be absolutely confiscated as the passenger attempted to smuggle it by concealment and non-declaration. The appellate authority's decision to allow re-export was contested, citing that it makes smuggling an attractive proposition. The Government upheld the Department's contention that absolute confiscation is warranted, referencing several judicial precedents supporting this view.

4. Determination of the Passenger as the Owner or Carrier:
The passenger admitted in her statement that she was carrying the gold for monetary consideration on behalf of another person, indicating that she was a carrier and not the owner. The Government confirmed that the passenger acted as a carrier, thus supporting the Department's stance for absolute confiscation.

5. Validity of the Statement Recorded under Section 108:
The statement recorded under Section 108 of the Customs Act, 1962, where the passenger admitted to smuggling the gold, was considered valid evidence. The passenger's retraction of the statement on grounds of duress was not supported by any evidence. The Government held that the statement before Customs officers is a material piece of evidence, and any subsequent retraction is an afterthought.

6. Application of the Doctrine of Merger:
The Commissioner (Appeals) dismissed the Department's appeal as infructuous on the grounds of merger, stating that the passenger's appeal had already been decided. The Government found merit in the Department's contention that the issues raised in their appeal were distinct and not considered in the passenger's appeal. Thus, the doctrine of merger was not applicable, and the Department's appeal should have been considered on merits.

7. Whether the Impugned Goods are Prohibited:
The gold was considered "prohibited goods" as the passenger did not fulfill the eligibility criteria for importing gold, making the import illegal under the Customs Act, 1962. The Government upheld that the goods were liable for absolute confiscation under Section 111(d) and (i) of the Customs Act, 1962.

Conclusion:
The Government allowed the Department's appeal for absolute confiscation of the gold and restored the penalty of Rs. 2,50,000/- imposed by the original authority. The appellate authority's order allowing re-export of the gold on payment of redemption fine was set aside. The Revision Applications succeeded, and the impugned Order-in-Appeal was annulled.

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