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TMI Blog2009 (10) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of this case, we trust, the Ld. Commissioner will pass orders as early as possible. At any rate, the order shall be passed within a period of 3 months from the date of receipt of a certified copy of this order. - C/77/2009-Mumbai - A/276/2009-WZB/C-II/CSTB - Dated:- 8-10-2009 - S/Shri P.G. Chacko, Member (J) and A.K. Srivastava, Member (T) Shri Dinesh Agarwal, Advocate, for the Appellant. Shri K. Lal, DR, for the Respondent. [Order per: P.G. Chacko, Member (J)]. - The appellant in this appeal was intercepted by the officers of Air Intelligence Unit of Customs, Mumbai Air port on his arrival from New York by Delta Airlines Flight No. DL-16 on 6-5- 2007. This happened at the exit gate of the Airport Arrival Terminal after the appellant had cleared himself out of the Customs area through the Green Channel. In the presence of panch witnesses at the exit gate, the officers queried the appellant, as to whether he was carrying any dutiable goods, drugs or diamonds, to which the appellant replied in the negative. Not satisfied with this answer, the officers searched his person, whereupon, one gold chain with gold pendant with 12 big diamonds studded thereto, which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00,000/- 10 Big Round WS1HI 11.05 = cts 15,00,000/- 11 Centre Emerald Cut WS1GH 13.8x12.22 = 8 cts 32,00,000/- 12 Oval VS1J 12.03x8.3 = 5.5 cts 6,00,000/- Weight of gold 50 grams valued at Rs. 35,000/-". On the above basis, the total value of the diamonds was Rs. 1,20,35,000/- It was upon such valuation of the goods that the seizure proceedings were completed under the above panchanama on 7-5-07. The appellant was arrested on 7-5-07 itself and, after medical examination, he was produced before the Additional Metropolitan Magistrate on 8-5-07. Before the Magistrate, he stated that his earlier statement under Sec. 108 of the Customs Act had been recorded under threat, duress and coercion. On 3-7-07; the appellant submitted a letter to the department along with a copy of his bail application as well as a copy of what he claimed to be the purchase bill of jewellery. The said bill was produced in a bid to prove that the above jewellery had been purchased on 22-10-1889 from a New York trader for an amount of US$ 27710.80. Investigating officers recorded further statements under Sec. 108 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1989 from New York, and since then, it was in his personal use. He relied upon CBEC Circular No. 72/98 to show that personal jewellery had been recognized as 'personal effect' for purposes of the Baggage Rules. The appellant also claimed sup port from a plethora of decisions. In this manner, he contested the show-cause notice. In adjudication of this dispute, the Id. Commissioner of Customs ordered absolute confiscation of the goods under Sec. 111(d), (l) and (m) of the Customs Act read with para 2.20 of the Foreign Trade Policy and Rules 11 and 14 of the Foreign Trade (Regulation) Rules 1993 He also imposed a penalty of Rs. 12 crores on the appellant under Sec. 112(a) of the Act. The appeal is directed against this order of the Commissioner. 2. Heard both sides. The ld. Counsel for the appellant has re-iterated all the averments and contentions raised in the reply to the show-cause notice. He has also stated with particular stress that, though the appellant wanted to cross-examine the Customs officers and witnesses who were parties to the panchanama proceedings, in order to bring out the truth with regard to the correct time of arrival of the flight and the correct stage of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dant that they can easily be removed and sold. Ac cording to the id SDR, the purpose of important of the item was purely commercial. These submissions are based on report of the expert who examined and valued the jewellery. It is the submission of the SDR that such a piece of jewellery can hardly be said to be "personal effect" within the meaning of this expression used under the relevant Baggage Rules. It is also submitted that there is no valid evidence of the alleged acquisition, by the appellant, of the jewellery from New York trader in 1989. The document produced by him purporting to be invoice issued by the New York trader is not authenticated and hence unreliable. The ld. SDR has also invited our attention to Sec. 3 of the Foreign Trade (exemption from application of Rules in certain cases) Order 1993. He has particularly referred to the first proviso to clause (h) of sub-Sec. (1) of Sec. 3 of the above Order. The ld. SDR also relied on the following decisions: (1) Sapna Sanjeev Kohli v. Commissioner of Customs, Mumbai [2009 (240) E.L.T. 207 (Bom.)]; (2) Surjeet Singh Chhabra v. Union of India [1997 (89) E.L.T. 646 (S.C.)]; (3) Commissioner of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises, as to whether the jewellery worn on the neck of the person would attract the statutory requirement of declaration under Sec. 77. However, as both sides before us, have proceeded on the premise that one or other provision of the Baggage Rules would apply to this case, we would like to steer clear of the aspect and hence would not like to address this question). Where the Baggage Rules apply, Rule 7 undoubtedly would apply to the facts of the case. Neither in the show-cause notice nor in the Commissioner's order was this provision invoked. We find that the appellant in his reply to the show-cause notice specifically claimed under Rule 7. However, apparently, the ld. Commissioner did not examine this claim in the proper perspective. 6. Yet another reason for remand in this matter is that, the crucial question of fact was not properly settled. According to the panchanama dated 7-5-07, the appellant was intercepted at the exit gate of the Arrival Terminal of the Inter national Airport at 10 p.m. on 6-5-07. This interception took place immediately after the appellant passed out of the Green Channel. According to the information furnished by the Delta Airlines to the departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no hard and fast rule that in each case cross examination was must. Every case depended upon its own peculiar facts. Eventually, each case would turn upon its own facts and circum stances and the conduct of the parties. What was relevant in considering the request for cross-examination was whether the request was relevant, justified or genuine or was it made just to protract the proceedings or with a view to malign or browbeat the witnesses. If the facts were so revealing, no useful purpose would be served by cross-examination. Therefore, the facts were to be analysed in the light of the totality of circumstances and the conduct of the parties. The defence, in this case had cited only one reason for attacking the genuineness of panchnama and the same had not been found worth any credence." 7. We are not impressed with the above reasoning of the Commissioner. According to the Delta Airlines, the expected time of arrival of the flight was 21.30 hrs and the exact time of arrival was 22.04 hrs. According to the panchanama, the appellant was intercepted at the exit gate of the Arrival Terminal of the Airport at 22.00 hrs. The ld. Commissioner, after considering these facts, ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the jewellery, whether new or used, was personally and reasonably required by him as a tourist taking into account all the circumstances of his visit. We are of the considered view that, for the ends of justice, the appellant shall have opportunity to prove his case. 9. As, in de novo proceedings, the appellant will be getting a reasonable opportunity of being heard, he will be at liberty to cite what-ever case law is found to be in his favour. The case law cited today by the ld. SDR is also open to be examined by the Commissioner. 10. In the result, we set aside the Commissioner's order and allow this appeal by way of remand, directing the ld. Commissioner to pass fresh speaking order on all questions of law and facts involved in this case, after giving to the appellant a reasonable opportunity of adducing evidence and also of being personally heard. We make it clear that a reasonable opportunity of cross-examining the witnesses concerned, is also part of the opportunity of adducing evidence. In the nature of this case, we trust, the Ld. Commissioner will pass orders as early as possible. At any rate, the order shall be passed within a period of 3 months from the date of re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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