9911796707
TMI Blog2015 (11) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... an admissible quantity - Held That:- In absence of any challenge to Mahazar and cross examination of Mahazar with witness, it is not possible to accept claim of the appellants that they were intercepted in the Customs hall and had not crossed the Customs barriers - True declaration could have been made in disembarkation card in which case, no case could have been made against the appellants at all. Margin has gone up now since exchange rate between dollar and rupee is favourable - Found no reason to allow redemption on payment of fine under facts and circumstances - Penalties imposed under Sections 112(a) and 114AA is harsh - Because of seizure of gold and confiscation thereafter it cannot be said short levy has taken place - Penalties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te confiscation of the gold bars, foreign currency and Indian currency. Further penalties under Sections 112(a) and 114AA of Customs Act, 1962 were also imposed on the appellants. 2. Heard both sides and perused the records. 3. Detailed written submissions were filed by the appellants. The submissions in brief are as under : The three appellants are friends and are doing business independently and men of means contrary to the statements recorded at the time of seizure. All of them filed Income Tax Returns and copy of the returns were also filed. Shri Haji Mohamed, the third appellant wanted to start a hotel project in Kumbakonam, Tamilnadu and for the purpose of investment for the hotel, they purchased gold bars to sell in India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner was wrong; it was also submitted that the observations of the Commissioner in the order that the appellants had visited India and therefore they are not eligible for the benefit is wrong since their visit was less than 30 days in the case of two passengers; it was also observed by the Commissioner that the appellants did not show any evidence to show that they did not avail exemption earlier; according to the instructions issued, it was for the department to verify whether the appellant had availed the benefit or not; gold is not prohibited and therefore, they may be allowed to be re-exported on payment of redemption fine; non-seizure of the baggage such as pants, shoes, etc. shows that the stand taken by the Revenue that gold was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtation was not complete. In any case, it has been clearly brought on record that in the disembarkation slip/card filed by the appellants, they had mentioned value of the imported goods as nil. True declaration could have been made in the disembarkation card in which case, no case could have been made against the appellants at all. There would have been documentary evidence of bonafide belief on the part of the appellants to show that they were clear in their mind that gold being brought by them was brought legitimately and could be cleared on payment of duty. In view of the fact that Mahazar has not been challenged and witness has not been cross examined and non-retraction of the statements before the Magistrate when the appellants were pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act, 1962. This judgement was upheld by the Hon ble Supreme Court, as reported in 2010 (254) ELT A15. In the circumstances and in view of the decision relied upon by the Commissioner, absolute confiscation ordered by him cannot be considered as legally wrong. 7. The appellants have disputed the conclusion reached by the Commissioner that the appellants cannot be considered of Indian original. Learned counsel submitted that it is sufficient proof that the person or his parents or grad parents or great grand parents was born in India or permanent resident in India. However no evidence to show that the appellants or their parents or grand parents or grand grand parents are Indian residents have been produced before us. All of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a calculation sheet which shows that the profit taking the present market value as on 15.12.2013 was only ₹ 16 lakhs. The margin has gone up now since the exchange rate between dollar and rupee is favourable. Nevertheless, in view of the fact that we have upheld the absolute confiscation itself and having found no reason to allow the redemption on payment of fine under the facts and circumstances of this case, we consider that penalties imposed under Sections 112(a) and 114AA is harsh. Section 112 provides for penalty when a person renders goods liable to confiscation under Section 111 of the Customs Act, 1962. Section 114AA provides for penalty when there is a short levy having taken place. Because of the seizure of the gold and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
