2018 (11) TMI 535 - CGOVT - Customs

Absolute Confiscation - penalty - smuggling - gold bangle/kara - Baggage Rules - case of applicant is that the gold bangle/kara was not purchased from Bangkok, this was in his use when he left from India - Held that - The applicant has not produced any evidence to establish that he had taken the Kara along with him from India itself and he has not been able to give a convincing reason as to why he had got the gold kara coated with silver colour if he had worn it as a religious symbol in India itself - Moreover, a steel kara is commonly used as a religious symbol and a gold kara is not generally considered as a religious symbol by the Sikhs. The Commissioner (Appeals) s order is erroneous to the extent the gold has been confiscated absolutely as Under Section 125 of the Customs Act, 1962, it is mandatory to give option to the owner of the goods to redeem the non-prohibited confiscated goods on payment of a fine - the Government now allows the applicant to redeem the confiscated gold kara within 30 days of this order on payment of Customs duty, fine of ₹ 80,000/ and penalty of ₹ 22,000/- - revision application allowed in part.

Issues:
- Absolute confiscation of gold bangle/kara under Baggage Rules, 1998 and Customs Act, 1962
- Claim of the applicant regarding the origin and purpose of the gold bangle/kara
- Lack of evidence provided by the applicant to support his claim
- Error in the Commissioner (Appeals)'s order regarding absolute confiscation without offering redemption option

Absolute Confiscation of Gold Bangle/Kara:
The judgment revolves around the absolute confiscation of a gold bangle/kara weighing 80.30 grams, valued at ?2,18,416, belonging to the applicant. The Commissioner of Customs (Appeals) upheld the order of absolute confiscation based on the premise that the gold was brought in contravention of the Customs Act and Baggage Rules. The applicant claimed that the kara was with him when he left India and was a religious symbol as a Sikh, not purchased from Bangkok. However, the applicant failed to provide substantial evidence to prove his claim. The government agreed with the Commissioner (Appeals) that the gold kara was liable for confiscation due to circumstantial evidence suggesting a commercial purpose rather than religious significance. Nonetheless, the judgment found an error in the order as no option for redemption was given, which is mandatory under Section 125 of the Customs Act.

Claim of the Applicant and Lack of Evidence:
The applicant contended that the gold bangle/kara was not acquired in Bangkok but was in his possession when he left India, serving as a religious symbol. Despite this claim, the applicant could not substantiate his assertion with concrete evidence. The judgment highlighted the lack of proof provided by the applicant to establish the origin of the kara and his reasons for having it coated with silver, which raised doubts regarding its religious significance. Additionally, the applicant's frequent travels as a textile goods carrier from Bangkok and the uncommon use of a gold kara as a religious symbol among Sikhs further weakened his argument. The absence of compelling evidence to support the applicant's claim played a crucial role in the decision to uphold the confiscation of the gold kara.

Error in Commissioner (Appeals)'s Order and Redemption Option:
While affirming the confiscation of the gold kara, the judgment identified an error in the Commissioner (Appeals)'s order, which failed to offer the applicant the option to redeem the confiscated goods, as mandated by Section 125 of the Customs Act. Since gold was not classified as prohibited goods, the judgment deemed it necessary to provide the applicant with the opportunity to redeem the gold bangle/kara upon payment of a fine. Consequently, the government modified the order, allowing the applicant to redeem the confiscated gold kara within 30 days by paying Customs duty, a fine of ?80,000, and a penalty of ?22,000. This rectification addressed the oversight in the initial order and ensured compliance with the legal provisions governing confiscation and redemption of goods under the Customs Act.

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