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TMI Blog2000 (11) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants, other than Yakub Yusuf who are members of an extended family, enlisted the aid of Yakub Yusuf for purchasing the gold and bringing it to India. They had asked Yakub Yusuf to declare it before the Customs. The Commissioner has wrongly denied these claims. 3. Let us first consider the purchase of the gold. The gold was purchased by Yakub Yusuf from a company at Zurich in Switzerland. There is no documentary evidence to show that Yakub Yusuf was merely acting on instructions from, and on behalf of the other five, when he purchased the gold. The sale document issued by the seller of the gold at Zurich only refers to him. No documentary evidence was produced before the Commissioner, in the form of correspondence or authorisations given to Yakub Yusuf to support the contention that he was carrying the gold from Zurich to Mumbai via London on behalf of the other five. Yakub Yusuf s route was from Zurich to London, where he was a transit passenger at the airport and then on to Mumbai. There is also no claim, or evidence, that each or any of them paid Yusuf Yakub for the gold or reimbursed him for it. The version which was earlier put forward on behalf of the appellant is that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was carrying the gold, that the gold did not belong to him although it does not support the claim of ownership of the other appellants. 7. A declaration of dutiable goods brought in as baggages has to be made by the owner of the baggage for clearance. This is what Section 77 of the Act provides. The persons who claim ownership of the baggage in this matter have not at any stage made a declaration. We are not aware of any provision of law which empowers the declaration to be made for baggage by a person other than the owner. There may be, it is true, in exceptional circumstances, the declaration may be made by a person other than the owner, such as when the owner, for the reason that he is not able to make it or is an infant. It is not however claimed that this claim applies to any of the passengers. There were two minors but were accompanied by their parents. There is no explanation as to why any of these persons did not declare the gold. Their utter silence in this regard is highly significant. On the contrary, two of the passengers had declared jewellery belonging to them for the proposes of being able to re-export, for which purpose a necessary certificate was issued to each o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of five persons who are majors. In the light of this finding that the Commissioner records, with regard to the absence of vakalatnamas, we do not find any error in his having accepted the replies signed by these three passengers in preference to that the purported advocate stated. 11. The position would, in any event, be the same, even otherwise. As we have discussed earlier, there is not the slightest evidence to show that the gold was purchased at Zurich, brought to London and from London to Mumbai by Yakub Yusuf at the request of and on behalf of these passengers. None of them, three majors among them declared the gold as would be expected had it belonged to them when they arrived at Mumbai airport notwithstanding, that two of them made Customs declarations for other goods. The total absence of evidence to show purchase by or on behalf of these persons, or ownership of the gold, and the significant conduct on the part of these three passengers out of five belie any claim made by the advocate for the appellants which is again not substantiated by evidence. The fact that Magistrate's order permitting bail to be granted to Yakub Yusuf in which he makes certain observation abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain category of persons, and which are ordered to be confiscated for the reason that the condition has not been complied with. In such a situation, since the goods could be imported on fulfilment of these conditions, release of such goods confiscated for the reason that the condition has not been fulfilled would not cause any danger or detriment to the general population as a whole. 14. The distinction therefore is between import of goods which is prohibited and import of goods which is restricted. Goods the import of which is totally prohibited would be the prohibited goods referred to in sub-section (2) of Section 125 of the Act. That sub-section would not include the goods the import of which is restricted to certain categories of persons or is conditional upon fulfilment of certain conditions. This is the view that the Tribunal has in its earlier decisions in Nanalal K. Jain Others v. CC (Prev.), 2000 (124) E.L.T. 401 (Tribunal) = 2000 (88) ECR 36 and the unreported order in appeals, C/354/98 320/98 in 1999 (106) E.L.T. 485 (Tribunal) Mohini Bhatia v. CC. In Felin Fernandez v. CC, the Tribunal permitted redemption of foreign currency attempted to be illegally exported. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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