2000 (11) TMI 393 - AT - Customs

Summary

Issues Involved:
1. Confiscation of 25 kilograms of gold.
2. Imposition of penalty under Section 112 of the Act.
3. Ownership and declaration of the gold.
4. Opportunity to declare the gold at Mumbai airport.
5. Validity of the retraction of statements by the appellants.
6. Legal standing of the declarations made by the appellants.
7. Confiscation and redemption of the gold.
8. Application for additional relief for re-export of the gold.
9. Confiscation of foreign currency.

Detailed Analysis:

1. Confiscation of 25 kilograms of gold:
The Commissioner ordered the confiscation of 25 kilograms of gold, allegedly imported by Yakub Yusuf. The other appellants claimed they imported 5 kilograms each through Yakub Yusuf. However, there was no documentary evidence to support that Yakub Yusuf was acting on behalf of the other appellants when purchasing the gold in Zurich. The sale document only referred to Yakub Yusuf, and there was no evidence of payment or reimbursement by the other appellants.

2. Imposition of penalty under Section 112 of the Act:
The penalty was imposed on Yakub Yusuf under Section 112 of the Act. The Tribunal upheld this penalty, noting that Yakub Yusuf was not entitled to the benefit of the notification for clearance as he had already availed of it previously.

3. Ownership and declaration of the gold:
The appellants claimed that Yakub Yusuf carried the gold on their behalf due to its heavy weight and their inexperience. However, there was no evidence or explanation as to why the other appellants did not declare the gold themselves. The Tribunal found this claim unconvincing, especially since some appellants had declared other items to Customs.

4. Opportunity to declare the gold at Mumbai airport:
The appellants argued that Yakub Yusuf was not given sufficient opportunity to declare the gold. However, the Tribunal found that there was no substantial evidence to support this claim. The statements from DRI officers did not corroborate the appellants' version of events.

5. Validity of the retraction of statements by the appellants:
The appellants retracted their initial statements disowning the gold and later claimed ownership. The Tribunal noted that these retractions required corroboration, which was lacking. The conduct of the appellants at the airport and their initial statements disowning the gold were significant factors in the Tribunal's decision.

6. Legal standing of the declarations made by the appellants:
Section 77 of the Act requires the owner of the baggage to make a declaration. The Tribunal found no provision allowing a declaration to be made by someone other than the owner, except in exceptional circumstances, which did not apply here. The appellants' failure to declare the gold was a significant factor in the Tribunal's decision.

7. Confiscation and redemption of the gold:
The Tribunal upheld the confiscation of the gold but permitted it to be redeemed for re-export on payment of a fine of Rs. 10 lacs. The Tribunal distinguished between goods that are absolutely prohibited and those that are restricted, noting that the gold fell into the latter category and could be redeemed.

8. Application for additional relief for re-export of the gold:
Yakub Yusuf filed an application for permission to re-export the gold as an alternative relief. The Tribunal allowed this application, noting that it was an additional relief and did not raise a new ground.

9. Confiscation of foreign currency:
The Tribunal found no grounds for the confiscation of the foreign currency brought in by Yakub Yusuf, as he had declared it. The confiscation was set aside, and the currency was allowed to be re-exported in accordance with the law.

Conclusion:
The Tribunal ordered the confiscation of the gold but allowed it to be redeemed for re-export on payment of a fine. The penalty on Yakub Yusuf was reduced to Rs. 5.00 lacs. The confiscation of the foreign currency was set aside. The appeal by Yakub Yusuf was allowed in part, while the other appeals were dismissed.