2019 (11) TMI 1215 - AT - Customs

Maintainability of appeal under Section 129(A) of the Act - Smuggling - Gold - only objection raised by the respondent in their Cross-objections is that the appeal is not maintainable under Section 129(A) of the Act because the confiscated goods have been recovered from the baggage of passenger - absolute confiscation - penalty - HELD THAT - The appellant was wearing two numbers of small chain and 2 bangles of gold and one big chain totally weighing 583.18o grams valued at 15, 74, 586/- of 24 carat purity gold which she did not declare on arrival at Mangalore Airport. On suspicion she was searched and then it was found that she was wearing these gold chains and bangles concealed under the burka which she was wearing. In her statement she has confessed that she was not aware that she was supposed to declare the gold and the ornaments. The original authority has discussed in detail the facts of the case and has arrived at a finding that the appellant has indulged in smuggling and has confiscated the unfinished gold totally weighing 583.18 grams seized from the possession of the appellant under 111(d) 111(i) 111(l) and 111(m) of the Act and also imposed penalty of 4, 50, 000/- on the appellant under Section 112(a) of the Act for her omission and acts rendering the goods liable for confiscation under Section 111 of the Act and also imposed penalty of 2 lakhs in terms of Section 114AA for having made false declaration under Section 77 of the Act. Penalty under Section 112 and Section 114AA of the Act - HELD THAT - The imposition of penalty under Section 77 is not sustainable in law because Section 77 is applicable only when passenger fails to declare in his baggage any goods which is liable to confiscation whereas in the present case it is on record that nothing objectionable was found in her baggage and it is only on a person gold ornaments were secreted - penalty imposed under Section 114AA set aside. Penalty under Section 112(a) of the Act - HELD THAT - The penalty is upheld but the same is reduced to 2, 25, 000/-. Absolute confiscation upheld. Appeal allowed in part.

Summary

Issues involved:
Smuggling of gold into India, confiscation of undeclared gold, imposition of penalties under various sections of the Customs Act, 1962, appeal against the Order-in-Original, contention regarding declaration of goods in baggage, defense based on religious customs, legal interpretation of relevant sections, consideration of judicial precedents.

Analysis:

1. Smuggling of Gold and Confiscation:
The appellant, an Indian citizen, was found attempting to smuggle gold into India by concealing it on her person. The seized gold, weighing 583.180 grams and valued at ?15,74,586, was confirmed to be undeclared and of 24 carat purity. The original authority confiscated the gold under various sections of the Customs Act, 1962, and imposed penalties for contravention of specific sections and notifications. The Commissioner(Appeals) upheld the Order-in-Original, emphasizing the appellant's intent to defraud the exchequer by smuggling the gold for illicit gain.

2. Legal Interpretation and Defense Arguments:
The appellant's counsel argued that the impugned order did not properly consider the facts and legal aspects. They contended that the confiscated goods were not recovered from the baggage but were concealed on the person of the appellant, citing a Kerala High Court decision. The defense also highlighted the appellant's religious customs as a reason for not declaring the gold ornaments worn under her burka. However, the Revenue defended the impugned order, emphasizing the non-declaration of the gold, lack of supporting documents, and the intentional concealment to evade duty.

3. Judicial Analysis and Decision:
After considering the submissions and evidence, the Tribunal found that the appellant indeed attempted to smuggle the gold by not declaring it on arrival. The Tribunal upheld the absolute confiscation of the smuggled goods but reduced the penalty imposed under Section 112(a) to ?2,25,000. The penalty under Section 114AA was set aside due to the specific circumstances of the case. The Tribunal concluded that the appellant's actions amounted to smuggling and upheld the confiscation while adjusting the penalties based on legal provisions and the facts presented.

4. Final Judgment:
The Tribunal dismissed the appeal, affirming the confiscation of the smuggled gold but modifying the penalties imposed under different sections of the Customs Act. The decision was based on a thorough analysis of the facts, legal provisions, and precedents cited by both parties. The Tribunal's ruling was pronounced on 26/11/2019, settling the matter regarding the smuggling attempt and the penalties imposed on the appellant.