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2024 (1) TMI 1219 - AT - CustomsAbsolute Confiscation of the seized gold and foreign currency - Prohibited item or not - Baggage Rules - appellant denied having any dutiable goods, his body and baggage were screened - first proviso to sub-clause (a) of clause (1) to Section 129A of the Customs Act, 1962 - HELD THAT - Any passenger entering into India is required to make a declaration of his baggage before entering into India as provided under Section 77 of Customs Act, 1962. Further if it is found that the goods accompanying him which are also called as baggage, import of which is prohibited and in respect of which true declaration has been made under Section 77 the proper officer may at the request of the passenger detain such articles for the purpose of being returned to him on his leaving India under Section 80 of Customs Act, 1962 - In the instant case, the passenger is neither a habitual offender nor carrying the said goods for smuggling purpose. In this circumstance the Order of the Ld. Commissioner for absolute confiscation of gold chains legally not correct. Further the gold is not a prohibited item. It can be imported only with certain conditions as prescribed under Exim Policy as well as guidelines laid down by the RBI. In the case of YAKUB IBRAHIM YUSUF VERSUS COMMISSIONER OF CUSTOMS, MUMBAI 2010 (10) TMI 650 - CESTAT, MUMBAI , it has been held that prohibited goods refers to goods like arms, ammunition, addictive drugs, whose import in any circumstance would danger or be detriment to health, welfare or morals of people as whole, and makes them liable to absolute confiscation. It does not refer to goods whose import is permitted subject to restriction, which can be confiscated for violation of restrictions, but liable to be released on payment of redemption fine. The gold does not fall under the prohibited category and therefore it cannot be absolutely confiscated. In the present case considering the facts and circumstances, the order of absolute confiscation is not sustainable in law and therefore the order of absolute confiscation is set aside and an option given to the appellant to redeem the Gold Chains on payment of redemption fine of Rs.3,00,000/-. Confiscation of foreign currency worth USD 11,325 - HELD THAT - Section 111 of the said Act, under which the impugned foreign currency has been confiscated, which provides for confiscation of improperly imported goods. Thus, unless the improper importation is proved with evidence, the said section is not applicable, there is no evidence on record to prove that the impugned foreign currency was improperly imported. Mere improper procurement, if at all, in contravention of FEMA, will not attract Section 111 of the said Act. In the present matter Revenue has not advanced any evidence to show that the foreign currency, in question, was smuggled into the country by the appellant. In the absence of such evidence, confiscation of the same cannot be upheld. Hence the confiscation of the currency is set aside. Accordingly the revenue shall release the currency of 11,325/- to the appellant. Penalties imposed on appellant under Section 112(a) and Section 114AA - HELD THAT - Having regard to the totality of the facts and circumstances of the impugned matter the penalty imposed is reduced to a sum of Rs. 1,00,000/- under Section 112(a) of the Act and the penalty of a sum of Rs. 50,000/-, under Section 114AA of the Act. The appeal is partly allowed.
Issues Involved:
1. Maintainability of the appeal before the Tribunal. 2. Absolute confiscation of gold chains. 3. Confiscation of foreign currency. 4. Imposition of penalties under Section 112(a) and Section 114AA of the Customs Act, 1962. Summary: 1. Maintainability of the Appeal: The Tribunal examined whether the appeal was maintainable under Section 129A of the Customs Act, 1962. The proviso to Section 129A restricts the Tribunal from deciding appeals related to goods imported or exported as baggage. However, since the appeal was filed against the order of the Principal Commissioner of Customs and not the Commissioner (Appeals), the Tribunal held that the appeal was maintainable. 2. Absolute Confiscation of Gold Chains: The appellant argued that the gold chains were personal effects and should be allowed duty-free entry under the Baggage Rules, 1998. The Tribunal found that the appellant had not made a clear declaration of the goods but noted that gold is not a prohibited item and can be imported under certain conditions. The Tribunal cited several judgments where redemption of absolutely confiscated gold was allowed and concluded that absolute confiscation was not warranted. The Tribunal set aside the order of absolute confiscation and allowed the appellant to redeem the gold chains on payment of a redemption fine of Rs. 3,00,000/-. 3. Confiscation of Foreign Currency: The Tribunal noted that Section 111 of the Customs Act provides for the confiscation of improperly imported goods. However, there was no evidence to prove that the foreign currency was improperly imported. Citing relevant case law, the Tribunal held that mere improper procurement in contravention of FEMA does not attract Section 111 of the Customs Act. Consequently, the Tribunal set aside the confiscation of the foreign currency and ordered its release to the appellant. 4. Imposition of Penalties: The Tribunal considered the penalties imposed under Section 112(a) and Section 114AA of the Customs Act. Given the totality of the circumstances, the Tribunal reduced the penalty under Section 112(a) to Rs. 1,00,000/- and under Section 114AA to Rs. 50,000/-. Conclusion: The appeal was partly allowed. The Tribunal set aside the absolute confiscation of the gold chains and allowed their redemption on payment of a fine. The confiscation of the foreign currency was also set aside, and the penalties were reduced.
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