2020 (9) TMI 267 - AT - Customs

Jurisdiction - Smuggling - Gold Jewellery - Baggage Rules - Revenue objected to the disposal of this appeal on the ground that the jurisdiction in a dispute relating to baggage vested with the Government of India, in its revisionary authority, and was not under the appellate jurisdiction of the Tribunal - HELD THAT - On perusal of the Rules pertaining to importation of jewellery, as baggage by an arriving passenger, it is seen that the quantity in the present dispute is far in excess of that allowed free of duty on import into India, Therefore, the passenger has failed to comply with declaration requirements and confiscation under section 111(1) of Customs Act, 1962 is not misplaced - The appellant is a citizen of Malaysia and intends to return to her country of domicile. She was unable to carry into, and wear the gold jewellery in, India and it is her request that she should be allowed to carry it back with her on the return trip to Malaysia. In view of these circumstances and this plea, while holding that the goods are liable for confiscation under section 111(1) of Customs Act, 1962, we desist from endorsing the conformation. Accordingly, the confiscation effected under section 111(1) of the Customs Act, 1962 is set aside. As the goods were liable for confiscation, the liability to penalty under section 112(a) of the Customs Act, 1962 is not unwarranted - the imposition of penalty of ₹ 1,00,000/- would suffice to meet the ends of justice - the appellant is directed to retrieve the gold jewellery and export it out of the country upon complying with the penalty imposed under this order. Appeal disposed off.

Summary

Issues:
1. Jurisdiction of the Tribunal in a dispute related to 'baggage'
2. Allegations of concealment and eligibility to import gold jewellery
3. Prohibition of importation of gold jewellery
4. Compliance with declaration requirements for importation of jewellery
5. Confiscation under section 111(1) of Customs Act, 1962
6. Imposition of penalty under section 112(a) of Customs Act, 1962

Jurisdiction of the Tribunal:
The Tribunal addressed the objection raised by the Authorized Representative regarding the jurisdiction in a dispute related to 'baggage.' The Tribunal clarified that 'baggage' falls within the purview of the original and appellate authorities designated under the Customs Act, 1962. The Tribunal highlighted the special treatment accorded to 'baggage' under the Customs Act, emphasizing that failure to comply with prescribed procedures for import of 'goods' leads to exclusion from 'baggage' status. The Tribunal noted that the matter was before them following a directive from the Hon'ble High Court of Madras, and the objection raised by the Revenue regarding jurisdiction was deemed untimely.

Allegations of Concealment and Eligibility to Import Gold Jewellery:
The appellant contested the allegations of concealment and ineligibility to import gold jewellery. The appellant argued that the impugned order was based on erroneous facts and circumstances, challenging the charge of concealment and the denial of eligibility based on nationality. The appellant criticized the reliance on the report of the assayer and highlighted procedural flaws in the proceedings. The Tribunal noted the absence of conclusive evidence of deliberate intent to smuggle gold and discrepancies in the presumption of gold purity.

Prohibition of Importation of Gold Jewellery:
The Tribunal examined the provisions of the Customs Act, 1962 and the Foreign Trade, Development and Regulation Act, 1992 to determine the prohibition of importation of gold jewellery. No order prohibiting the import of such goods was found, leading the Tribunal to conclude that the imported jewellery was not prohibited. Consequently, the confiscation under section 111(d) of the Customs Act, 1962 was deemed invalid.

Compliance with Declaration Requirements for Importation of Jewellery:
Upon reviewing the rules governing the importation of jewellery as baggage, the Tribunal found that the quantity imported exceeded the permissible limit duty-free. The appellant failed to comply with declaration requirements, justifying the confiscation under section 111(1) of the Customs Act, 1962.

Confiscation and Imposition of Penalty:
While upholding the confiscation under section 111(1) of the Customs Act, 1962, the Tribunal refrained from endorsing the same due to the appellant's circumstances. A penalty of &8377;1,00,000 was imposed under section 112(a) of the Customs Act, 1962. The impugned goods were deemed not liable for duty, directing the appellant to retrieve and export the gold jewellery after complying with the imposed penalty.

This comprehensive analysis of the judgment covers the various issues involved and the Tribunal's detailed reasoning and conclusions on each aspect of the case.