1999 (5) TMI 382 - AT - Customs

Summary

Issues Involved:
1. Confiscation of unmanifested gold.
2. Imposition of penalties under Sections 112 and 117 of the Customs Act, 1962.
3. Compliance with Sections 30, 31, and 32 of the Customs Act, 1962.
4. Validity of the appellants' claim of a mistake in shipment.
5. Determination of whether an import had taken place.

Detailed Analysis:

1. Confiscation of Unmanifested Gold:
The core issue is the confiscation of 25.100 kgs of gold brought as unmanifested cargo on Board KLM Airlines Flight No. KL 871 from Amsterdam to New Delhi on 27-11-1997. The gold was confiscated under Section 111(d) and (f) of the Customs Act, 1962. The consignment was not listed in the cargo manifest, which is a violation of the regulations. The gold was discovered during the deposit of valuables in the strong room at the Airports Authority of India, and it was subsequently seized by the preventive branch of Air Cargo on 1-12-1997.

2. Imposition of Penalties:
A penalty of Rs. 1 crore was imposed on Appellant No. 1 under Section 112 of the Customs Act, and a penalty of Rs. 1,000/- was imposed on the second appellant under Section 117 of the Customs Act. The adjudicating authority found that the appellants had contravened the relevant provisions of the Customs Act, leading to the imposition of these penalties.

3. Compliance with Sections 30, 31, and 32:
The Department charged that the appellants had imported a restricted item (gold) unmanifested, violating Section 30 of the Customs Act, which mandates the delivery of an import manifest within 24 hours of arrival at a Customs Station. The appellants amended the cargo manifest without prior permission from Customs authorities, violating Section 32, which requires permission for unloading unmanifested goods. The gold was thus liable to confiscation under Section 111(f) and (d) as it was a restricted item for import.

4. Validity of Appellants' Claim of Mistake:
The appellants contended that the gold was mistakenly sent to Delhi instead of Curacao due to a marginal difference in flight departure times. However, the Tribunal found the appellants' explanation implausible. The detailed procedure for handling valuables at Amsterdam, as explained by the appellants' staff, ruled out the possibility of such a mistake. The Tribunal noted discrepancies in the appellants' claims, such as the absence of a pre-advice for the gold shipment to Curacao and the different seal numbers on the consignment.

5. Determination of Whether an Import Had Taken Place:
The appellants argued that no import had taken place as the gold had not crossed the Customs barrier, citing various legal precedents. However, the Tribunal distinguished these cases, noting that the importation of goods occurs when they enter the territorial waters of India. The Tribunal held that the import of unmanifested gold had indeed taken place, making it liable to confiscation.

Conclusion:
The Tribunal upheld the confiscation of the gold and the penalties imposed but reduced the penalty on Appellant No. 1 to Rs. 25 lakhs, considering the totality of the facts and circumstances. The penalty on Shri P.D. Hariharan was not interfered with, as it was already nominal. The appeals were rejected subject to the modification in the quantum of penalty.