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TMI Blog2008 (2) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... were recovered from the first Appellant but directed that it be adjusted against the penalty imposed on her. 2. The brief facts of the case are that on 12-8-2005, the 1st appellant arrived at Mumbai, CSI Airport from Dubai. The Customs officer posted for baggage screening noticed some dark patches in her baggage. The zipper handbag belonging to the appellant was opened by her and it contained 18K gold jewellery valued at Rs. 68,69,200/-. The appellant submitted an invoice dated 9-8-2005 from Al Yom Jewellery L.L.C., Deira Gold Market, Dubai, U.A.E. issued in her name for Jewellery valued at DHS 4,21,830 equivalent to INR 47,45,587.50 bearing 'PAID' stamp on it. The purse of the appellant contained US$ 2,950 and UAE DHS 4,600. The above gold jewellery was seized. The cardboard carton containing jewellery boxes and the foreign currency in USD and DHS were also taken over by the Department for further investigations. 3. The appellant's statement was recorded on 13-8-2005 under Section 108 of the Customs Act, 1962, wherein she, inter alia, stated that her husband is in the business of jewellery trading; that he had given her UAE DHS 4600 and US$ 2,950 to pay as duty for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound during the search of the residential premises of the 1st appellant (Sapna Kohli) at Jodhpur. 13. A summon dated 20-10-2005 was issued to Sanjeev Kohli (husband of the 1st appellant - Sapna Kohli). A letter dated 2-11-2005 was received through his Advocate enclosing a letter dated 25-10-05 from Sanjeev Kohli in which it was, inter alia, stated that he could not attend as his employer had detained his passport. Copies of leave application and rejection letter were also enclosed. 14. A Show cause notice dated 7-2-06 was issued to the appellants. Vide letter dated 3-4-06, the 1st appellant replied to the Show Cause Notice. The 2nd and the 3rd appellants replied to the Show Cause Notice vide letters dated 17-5-06, 8-5-2006 and 22-2-2007. 15. After following the necessary adjudication proceedings, the Commissioner passed the impugned order dated 28-2-2007 as referred to above. Shri Anil Balani, Advocate, appeared for the appellants and the Department was represented by Shri S.N. Prasad, S.D.R. 16. We have heard both the sides and perused the records. 17. The learned Advocate for the appellants, inter alia, submitted that the Additional Chief Metropolita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or the other. 22. According to the learned Counsel appearing for the appellants, the jewellery cannot be confiscated under Section 111(d) of the Customs Act, 1962. Section 111(d) can be invoked only in case of prohibited goods. Import of gold jewellery is freely allowed to all persons under the relevant ITC (HS) EXIM Policy. Further, under Section 125 of the Customs Act, 1962, it was mandatory for the learned Commissioner of Customs to give an option to redeem the said goods. The absolute confiscation of the goods is unjustified as the language of Section 125 of the Customs Act, 1962, makes it clear that only in cases of prohibited goods, the officer adjudging it may exercise his discretion of giving an option to redeem the goods but in case of any goods other than prohibited goods he shall give an option to redeem. Therefore, absolute confiscation of the jewellery was contrary to the statutory provisions. 23. It was his submission that the principles of natural justice have been violated as the Panchas and the Investigating officers were not offered for cross- examination in spite of the specific request made by the Appellants. It is well settled by the judgments of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act'. Hence the confiscation for Foreign Exchange seized from Ved Prakash on the ground that it was sale proceeds of smuggled goods under Section 121 ibid was not sustainable, as the charge under the said section has not been proved. 26. The S.D.R, however, submitted that the appellant did not declare the gold jewellery in the declaration form provided in the aircraft. It is his submission that she should have at least filled up the approximate value of the goods being carried by her. The appellant is a graduate and has travelled in the past. She is, therefore, aware that appropriate duty has to be paid on the goods being brought by her. This is deliberate case of smuggling and her husband and his associates have in the past cleared jewellery without payment of duty. 27. It was further argued by the learned DR that goods in trade quantities cannot be imported in baggage. However, it was argued by the Advocate appearing for the appellants that it is settled by this Tribunal that a passenger can import goods, which are otherwise freely importable and for the goods in trading quantity attempted to be imported without licence, redemption fine is to be imposed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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