2020 (3) TMI 668 - CGOVT - Customs

Smuggling - Gold Biscuits - Baggage Rules - absolute confiscation - penalty - HELD THAT - In the instant case, it is evident that applicant is the bona fide owner of impugned goods and the applicant had requested the Commissioner (Appeals) to allow the re-export of impugned goods. Section 80 of the Customs Act, 1962 provides that the detained imported goods can be re-exported at the request of the passenger where he/she is returning from India to a foreign country. Thus, apart from declaration of the imported goods at the time of arrival of passenger, return of the passenger to the foreign country after a short visit to India as a tourist or otherwise is a crucial condition for re-export of such goods. The applicant has contended that he was not given an opportunity to declare the gold items in writing at the time of his arrival at Kolkata Airport. No baggage declaration had been filed by him under Section 77 of Customs Act, 1962 since the goods were intercepted by the customs after immigration before the applicant went to green channel - the applicant s contention regarding non-declaration under Section 77 of Customs Act, 1962 is accepted. The applicant returned after a short visit to India. The Government holds that the re-export of the confiscated gold biscuits can be allowed in the present case. Hence, re-export of the impugned gold items are allowed on payment of redemption fine of ₹ 2,00,000/- (Two lakhs only) under Section 125 of the Customs Act, 1962. The penalty of ₹ 50,000/- (Fifty thousand only) as ordered by the Assistant Commissioner and upheld by the Commissioner (Appeals) on the applicant under Section 112 of Customs Act, 1962 is upheld. The above fine and penalty should be paid within 30 days of the receipt of the order. Revision application allowed.

Summary

Issues:
1. Confiscation of gold biscuits and imposition of penalty by Customs authorities.
2. Request for re-export of confiscated goods by the applicant.
3. Non-declaration of imported goods by the applicant.
4. Legal provisions under the Customs Act, 1962 regarding re-export of detained goods.
5. Consideration of past cases for condonation of non-declaration by foreigners and NRIs.

Confiscation of Gold Biscuits and Imposition of Penalty:
The case involved the confiscation of two gold biscuits from the applicant upon arrival at NSCBI Airport, Kolkata, with a penalty of ?50,000 imposed under Sections 111(d) and 112 of the Customs Act, 1962. The applicant appealed against the order-in-original, seeking re-export of the goods and waiver of the penalty. The Commissioner (Appeals) upheld the confiscation and penalty, leading to the filing of a revision application.

Request for Re-Export of Confiscated Goods:
The applicant, a Non-Resident Indian living in Singapore, requested re-export of the confiscated gold biscuits to Dacca, citing his status and the lack of opportunity to declare the goods upon arrival. The applicant's request for re-export was not considered by the lower adjudicating authority, prompting the revision application seeking waiver of the penalty and permission for re-export.

Non-Declaration of Imported Goods:
The applicant contended that he was not given an opportunity to declare the gold items upon arrival at Kolkata Airport, as they were intercepted after immigration but before crossing the green channel. The absence of a baggage declaration under Section 77 of the Customs Act, 1962 was highlighted, with the applicant returning after a short visit to India, further emphasizing the lack of declaration.

Legal Provisions for Re-Export of Detained Goods:
The judgment analyzed Section 80 of the Customs Act, 1962, which allows detained imported goods to be re-exported at the passenger's request when returning from India to a foreign country. The applicant's case was evaluated in light of this provision, emphasizing the importance of declaration upon arrival and the passenger's return to their home country after a brief visit to India.

Consideration of Past Cases for Condonation:
The Government considered past instances of condoning non-declarations by foreigners and NRIs, citing a previous order in a similar matter. Relying on this precedent, the authority allowed the re-export of the confiscated gold biscuits upon payment of a redemption fine of ?2,00,000, while upholding the penalty of ?50,000 imposed on the applicant. The applicant was directed to pay the fine and penalty within 30 days of receiving the order.

In conclusion, the revision application was allowed, modifying the Order-in-Appeal to permit the re-export of the confiscated gold items upon payment of the redemption fine, while upholding the penalty imposed on the applicant.