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TMI Blog2002 (8) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... telligence Unit intercepted them, near the exit gate, on reasonable belief that they are in possession of some dutiable goods kept in the two checked in baggage. The officers, in the presence of two independent witnesses, questioned Smt. and Sri Parmar whether they had anything to declare for which they replied that they did not have anything to declare, except for some chocolates, food items and personal effects. The officers then opened the baggage of Smt. and Sri Parmar. Examination of their baggage revealed concealment in black polythene sheets of huge quantities of medicines, which were in the form of tablets, capsules, ointments, patches etc. The medicines were concealed in the black polythene sheets of both the top and bottom sides of the two checked in suitcases. The polythene sheets were also placed in between two layers of medicines. The checked in baggage was booked in the name of Shri Parmar. The goods were seized as the same were attempted to be smuggled without declaring to the Customs in contravention of the provisions of the Customs Act, 1962 liable for confiscation under the Customs Act, 1962. During the examination of the baggage the officers found the personal ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re life saving drugs and other drugs to help people to overcome from addiction to smoking. They were not in the nature of any harmful goods and that such goods probably needed a licence for import from the Drug Control Authority under the Drugs Act. He further urged that the value fixed at Rs. 25 lakhs by the Department was certainly on the higher side as against the actual C.I.F. value of Rs. 10 lakhs for which his clients had already submitted proof to the investigation officers which in turn indicated that only about Rs. 6 lakhs was attempted to be evaded on the impugned goods. Shri Hirani further requested that his clients be permitted to re-export the impugned goods after payment of fine which would enable them to come out of the liability they owed in this regard to the party who supplied the goods to them in England. He also stated that his clients were middleclass citizens of United Kingdom whose daughter aged 19 years was mentally retarded and son aged 15 years was in school and that Sri Parmar worked as a driver and also helped physically handicapped people and that therefore considering the status and employment of Sri Parmar, a sympathetic view may be taken while adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rug store in Hyderabad and after showing the samples; and that the estimated price of Rs. 24,83,830/- is the landed cost of the impugned goods. I therefore do not accept the claim of Smt. Sri Parmar that the value of the impugned goods should be treated as Rs. 10 lakhs. And passed the following Order :- (i) Under Section 111(d) and Section 111(m) of the Customs Act, 1962, I confiscate the drugs and medicines seized from Shri Mansuklal Parmar and Smt. Jyotsna Parmar on 27-4-2002 when they alighted at Hyderabad by flight AI 808 from London via Mumbai. However, under Section 125 of the Customs Act, 1962, I allow Smt. and Sri Parmar to redeem the said goods by paying a fine of Rs. 5,00,000/- (Rupees five lakhs only). Smt. Sri Parmar will have to also fulfil the requirements prescribed under the Drugs and Cosmetics Act, 1940 and the rules made thereunder before redeeming the said impugned goods. (ii) Under Section 118 of the Customs Act, 1962 I confiscate two zipper suitcases and one stroller which were used as package to smuggle the impugned goods. However, these packages may be returned to Smt. Sri Parmar if the impugned goods are redeemed as per terms and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion is incorrect, it would still be correct to say that the appellant had not declared these goods to be baggage. The position would have been different if the officers waited till the appellant filed a baggage declaration form. But they did not. In theory, the appellant could no doubt file a bill of entry for clearance of these goods . Following the same, and in view of the fact, that no material was laid before us by Revenue, that the goods are not freely importable, we cannot find and uphold the confiscation under Section 111(d) for breach of the import Trade Control Laws prohibitions. As regards the liability for confiscation for not complying with the provisions of Drugs and Cosmetics Act, 1940 and the rules made thereunder, we find that the Commissioner cannot uphold the liability for confiscation under Section 111(d) for a prohibition under any other Act i.e., Drugs Cosmetics Act, 1940 and thereafter direct the compliance with the same provisions of that Act, non-performance of which had initially cast the liability for confiscation as made by him in the present order. Once the goods are confiscated and ordered to be redeemed, there is no question of fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... husband s suitcases. Therefore, having not performed any act rendering the goods liable for confiscation under Section 111(m), she is not liable for a penalty under Section 112(a) of the Customs Act, 1962 as imposed. Similarly, she cannot be held liable for abetting in assisting in removing the two suitcases of her husband through the green channel as she was only assisting her husband. Therefore she would not be liable for penalty under Section 112(a). (d) We find that there is force in the argument being made before us that re-export of the subject goods should be allowed. The ld. Advocate has relied upon the case of Escorts Herion Ltd. v. Commissioner [1999 (107) E.L.T. 599] and the ld. DR has drawn our attention that the said case law holds that as regards re-export there is no provision to permit re-export subsequent to the confiscation of the goods. Once confiscation is set aside this bar would not be there. We find that in the case of Groves Overseas Pvt. Ltd. [1990 (46) E.L.T. 129, the Western Regional Bench of this Tribunal, has held as follows :- Import - REP licence - Re-export without fine of blended Silk wool yarn supplied instead of spun silk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case when we find that the confiscation thereof and the redemption fine as imposed cannot be upheld. We would therefore, allow the re-shipment of goods imported in baggage. However, since the confiscation under 111(m) for a mis-declaration made by Sri Parmar is found and is being upheld by us, we would permit such re-export, only after ordering confiscation of the goods and offering a redemption for the purpose of re-export only. Re-shipments should be allowed on nominal token fines. We would consider therefore a fine of Rs. 1.50 lakhs (Rs. One Lakh Fifty thousand only) to be sufficient in the case, when we consider that the goods are anti-smoking and/or nicotine addiction cure remedies and like goods; we would reduce the fine from Rs. 5 lakhs to Rs. 1.50 lakhs (Rs. One lakh fifty thousand only) and order that the re- shipment be made under Customs supervision within a period of three months from the date of receipt of this order. (e) Since we do not find Smt. Parmar to be liable for a penalty, we would order that the penalty of Rs. 1 lakh under Section 112(a) of the Customs Act imposed on her is set aside. Considering the facts and circumstances of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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