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TMI Blog2009 (2) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... nfiscation but allowed redemption 2 gold biscuits of one Kg each on payment of fine of Rs. 25,000/- and also reduced the penalty from Rs. 15,000 to Rs. 5,000/-. This order has not been appealed against by either side. 1.3 In the appeals by Shri Dinker Khindria and Shri Dinesh Khindria, the Tribunal by order dated 25-7-2000 [2001 (135) E.L.T. 610 (Tri. - Del.)] upheld the order of the original authority insofar as these two appellants are concerned. Against the said order an ROM was filed by the appellants which was also dismissed by the Tribunal vide order dated 3-6-2005. Against these 2 orders the appellants moved the Hon ble High Court of Delhi and the Hon ble Delhi High Court vide order dated 23-9-2008 [2008 (231) E.L.T. 47 (Del.) = 2008 (12) S.T.R. 419 (Del.)] set aside the orders of the Tribunal dated 25-7-2000 and 3-6-2005 and remanded the matter for de novo consideration with the following observations/directions :- 13. With the above observations we set aside the impugned orders dated 25-7-2000 and 3-6-2005 and remit the matter to the Tribunal for a consideration afresh. The Tribunal will also take note of its decision in the case of Mohit Thakore v. Collector of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nkar Khindria, Dinesh Khindria and Mohit Thakur, under section 112 of the Act ibid. This order is being passed without prejudice to any other action that may be taken against the aforesaid S/Shri Dinkar Khindria, Dinesh Khindria and Mohit Thakur or any persons under this Act or any other Act/law for the time being in force. 4.1 The Tribunal in the case on appeal by Shri Mohit Thakore has upheld the confiscation of 2 biscuits and allowed to redeem the same on payment of redemption fine with following observations :- 10. We have considered the above submissions. We observe that Id. JDR s argument that the FERA Notification No. 111/92, dated 29-2-1992 has to be read with Customs Notification No. 117/92, dated 1-3-1992 and I.T.C. Order No. 83/90-93, dated 29-2-1992, along with other relevant provisions of the Customs Act in order to comprehend the situation is correct. 11. At the same time, the ld. Advocate is correct in pointing out that the RBI Circular No. 15, dated 30-3-1992 cannot be ignored and has to be simultaneously kept in view. 12. A perusal of the above provisions show that first and foremost a passenger has been allowed to import gold as baggage subject to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utside India in the proviso as well. 16. In other words, this provision is in harmony with the Customs and the ITC Notifications. A problem is, however, created by RBI Circular No. 15, dated 13-3-1992 which mentions that while in the case of non-resident the general permission is available once in six months, in the case of others the general permission is available provided their stay outside India preceding their coming has not been less than six months i.e. this circular distinguishes between NRI and others and indicate time gap of six months only in the case of latter. 17. Learned JCDR is of course right in stating that normally a section of the Act or a Rule or a Gazette Notification issued under the Act or the Rules must take precedence over an executive instruction or a circular. But in this case the circular has been issued under Section 73(3) of FERA, 1973. It has been addressed to all authorised dealers in Foreign Exchange and indicates that the amendment to the Exchange Control Manual will be revised in due course and emphasises that contravention or non-observance will be subject to penalties under the Act. Therefore, this circular cannot be lightly brushed aside a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention on the part of Shri Mohit Thakore to evade payment of customs duty as the duty was paid through a co-passenger; the duty was paid in foreign exchange and, therefore, conditions of ITC as well as Customs notification have been duly fulfilled. 5. As already mentioned, the present appeals by Shri Dinker Khindria and Shri Dinesh Khindria are against the very same order of the Collector dated 17-8-1993 and are being heard afresh in the light of directions dated 23-9-2008 of the Hon ble High Court. 6.1 Learned Advocate for the appellants made the following important submissions :- (a) Shri Dinker Khindria brought 3 gold biscuits; he had produced relevant invoices for purchase of the same; he declared 3 biscuits before the Customs authorities; he paid the applicable duty of Rs. 1,35,000/- by tendering foreign exchange and, he was paid back the excess of Indian Rs. 315/-. (b) The allegation and findings of the Commissioner that Shri Dinesh Khindria came into the Customs Hall around 1 A.M., stayed there for nearly 3 hours is not unbelievable as the Customs area is within the protected security area. (c) The claim that Shri Dinker Khindria handed over two of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute in the present proceedings; in respect of these 2 biscuits no declaration under Section 77 has been made as the same have been clandestinely sent out through his brother; no applicable duty has been paid; after they have been clearly smuggled out, they were seized at the exit gate. Even though Shri Dinker Khindria might be eligible for importing the gold, inasmuch as the same have not been declared, not duty paid, they are liable for absolute confiscation. 7.2 The Tribunal in the case of Shri Mohit Thakore, has held that as an NRI he was eligible to import the gold but he did not personally declare the gold. However, the Tribunal taking into account that the gold brought by him was declared through Shri Dinker and the duty was paid in foreign exchange given by Shri Mohit Thakore, took a lenient view. Thus, while upholding the order of confiscation allowed him to redeem the gold on payment of a fine of Rs. 25,000/-. The violations in respect of two gold biscuits in the present proceedings are more serious than those relating to gold owned by Shri Mohit Thakore. 7.3 The present value of the gold is more than 29 lakhs. He seeks upholding absolute confiscation of the 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Shri Mohit Thakore) and paid total customs duty of Rs. 1,35,000/ in foreign exchange and in this connection he has used foreign exchange given by Shri Mohit equivalent to Rs. 90,000/-. 8.3 The order dated 6-5-94 of the Tribunal in the case of Shri Mohit Thakore has held that he, as an NRI was eligible to bring gold in his own right. The order has been passed on the appreciation of the facts that Shri Mohit Thakore brought the gold; he failed to declare it himself and, that he got it declared through his friend Shri Dinker Khindria and also got the duty paid. The Tribunal s order in the case against Shri Mohit Thakore has not been appealed against by both sides. These facts have to be clearly taken into account by us as per the direction contained in the order dated 23-9-2008 of the Hon ble High Court. 8.4 Totally 5 gold biscuits (three owned by Shri Dinker Khindria and two owned by Shri Mohit Thakore) have been brought by them and two biscuits were found in the possession of Dinesh Khindria when he was out side airport near the exit gate and seized in the presence of two independent witnesses. The denial that no gold was seized from Shri Dinesh is clearly an after thought an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, where such owner is not known, the person from whose possession or custody such goods have been seized] an option to pay in lieu of confiscation such fine as the said officer thinks fit : Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. In other words, if the goods are not prohibited, the confiscated goods are necessarily to be allowed redemption on payment of fine. However, if the goods are prohibited, redemption may or may not be given. In the given circumstances, we hold that Shri Dinker Khindria is entitled to import the gold. If we may say so, the import of 3 biscuits were not prohibited insofar as Shri Dinker Khindria is concerned. As the import of gold was not prohibited the option of redemption has to be allowed. 8.5 This takes us to the next issue as to the quantum of redemption fine. Taking the totality of the facts and circumstances of the present case and also the decision of the Tribunal in the case of Shri Mohit Khindria (sic), we direct that the gold confiscated shall be al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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