9911796707
TMI Blog2000 (10) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... session of 42 bars of 10 tolas each foreign mark gold in a sun brown colour hand bag which she stated to be belonging to the subject appellant. The subject appellant produced a duty paying receipt for payment of duty on 42 bars of foreign mark gold. This duty was paid by him on the same date at the Customs Airport, Chennai for the gold which he had brought with him under the relevant baggage rules. The appellants had also taken a stand that he had given the bag to Smt. Saroja Shanmugam as the strap had broken on the way and he had gone to assist the two other passengers, whose names were given by the investigators to be S/Shri Peer Mohammed and Sheik Mohammed, who were old and infirm, they had also arrived with the said flight and had clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the gold under seizure and the offence under the Foreign Trade (Development and Regulation) Act, 1992 was clearly established, thus rendering these 42 gold bars liable for seizure under Section 111(d)(1) (m) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (Development Regulation) Act, 1992 and the impugned sun bag of brown colour of no commercial value used for concealment liable to confiscation under Section 119 of the Customs Act, 1962. The present appellant who had left the bag with Smt. Saroja Shanmugam without duty paying document and Smt. Saroja Shanmugam from whom the bag containing 42 gold bars were seized, were liable to penalty under Section 112(a) of the Customs Act, 1962. He also observed that Smt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e two old and infirm Muslim passengers with their baggage, the 42 pieces of duty paid gold might have been removed. He submits that there is no clear cut finding also regarding this presumption in the present order impugned. Once even such a presumption has not been arrived at by the Commissioner, it is not understood and clear as to how the Commissioner is holding that the goods found with Smt. Saroja Shanmugam could be other than the 42 bars of gold on which duty was paid on the same date by the present appellant. In any case, there is no discussion by the Commissioner regarding duty payment receipt produced by the appellants. He submits that entire case is built on conjectures and surmises and is required to be set aside, the gold be rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so where how did he expect Smt. Saroja Shanmugam come out of Customs with more than 5 kgs. of gold, he had replied that he had told Smt. Saroja Shanmugam regarding the bag containing of gold and also he was having the tax payment receipt and therefore, he was sure that whoever stops them, then he could have shown the receipt. This admission of the appellant has not been considered by the Commissioner and this admission is recorded by the officers, itself in his statement that there was no attempt on the part of Shri Ahsockan to have handed over the gold to Smt. Saroja Shanmugam which was to be cleared without declaration or without payment of duty. Learned Commissioner has noted that no person would give a bag containing gold and take the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence which could be available with the Customs. No such evidence was produced to indicate that Shri Ahsockan had cleared oher bags than the bag which was given by him to Smt. Saroja Shanmugam. It is very surprising as to why the entire baggage of Shri Ahsockan was not intercepted by the investigating authorities at the relevant time. It is too late to speculate that in some other bag Shri Ahsockan had cleared 42 bars of gold and the second consignment was kept with Smt. Saroja Shanmugam to be cleared on the same duty paying receipt. We, therefore, find no reason to come to a conclusion that the gold found in possession of Smt. Saroja Shanmugam was not duty paid and declared by Shri Ahsockan as it is admitted by Smt. Saroja Shanmugam, Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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