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TMI Blog2016 (6) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 ibid. However this Section is applicable only to cases of bonafide baggage declared to Customs, which the respondent failed to do and is not eligible for re-export of impugned goods. Government also finds no merit in the plea of the respondent that the gold was not required to be declared and can be cleared free of duty of the condition of re-export. Government notes that in terms of Section 77 anything imported by a passenger is required to be declared to Customs and is chargeable to duty above the passenger is required to be declared to Customs and is chargeable to duty above the specified limits. Further gold and gold jewellery can be imported by only eligible passengers subject to fulfillment of conditions thereof. Government finds that the passenger was a Sri Lankan passport holder not eligible to import the impugned goods and the same were also not declared to the Customs. But for being apprehended by Customs, the passenger could have been successful in smuggling in the impugned goods into the country on behalf of another. Therefore, penalty has rightly been imposed upon the respondent under Section 112 ibid and Government finds no reason to interfere with the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, all dutiable articles imported by a passenger or a member of a crew in his/her baggage under heading 9803 are restricted as per the ITC-HS 2011-12 read with Rule(1)(b) of the Foreign Trade (Exemption for Application of Rules in certain cases) Order, 1993 and Rule of the Baggage Rules, 1998. 2.2 In the instant case, the passenger was only a carrier and not the owner of the gold and she did it of a financial consideration. Moreover, she was not entitled for the benefit of concessional rate of duty under Customs Notification No. 31/2003 being Sri Lankan national. As she had attempted to smuggle the said 87.5 gram of gold bangle without declaring it to Customs, she contravened the provisions of Section 77 of the Customs Act, 1962 and accordingly the goods in question were found liable for confiscation. The passenger was also found liable for penal action under section 112 of the customs Act, 1962 for the office committed by her. 2.3 accordingly, Deputy commissioner of Customs (Airport) passed the Order-in-Original dated 23.6.2012 and ordered:- (i) Absolute confiscation of the aforesaid one number of gold bangle weighing 87.5 grams valued at ₹ 2,47,275/- (Rupees two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Tribunal order No 1980/09 dated 24/12/09, in the case of G.V Ramesh and others Vs CC Air Chennai 2010 (252) ELT 0212 (T-Mad). 4.4 Hon ble high court of Bombay in the case of UOI Vs Mohamed Ahmed WP No. 1901/2003 decided on 23/07/2009 reported in 2009(244) ELT 49 (Bom) has set added the order of CESTAT allowing redemption of told and held the order passed by Commissioner of Customs ordering absolute confiscation of gold. In his case the gold did not belong to the passenger Mr. Mohammed Aijaj who acted as carrier of gold. The said order of Bombay High Court was upheld by Hon ble supreme court in its decision reported in 2010(253) ELT E83(SC). In view of the above, it is prayed that that the Order-in-Appeal be set aside, absolute confiscation and penalty be upheld or such an order be passed as deemed fit. 5. A show Cause Notice was issued to the respondent under Section 129 DD of Customs Act, 1962 on 21.03.2014 and 01.08.2015 filed their counter reply as under:- 5.1 That the respondent is a Srilankan National and on 2306.2012 she along with five ladies came to India in order to attend a marriage at Pondicherry and landed at Chennai International Airport. 5.2. that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at nowhere that Act says the goods should be absolutely confiscated if the goods brought by other than the owner. That no statement under Section 108 of the Customs Act was recorded to prove their version. That the respondent was wearing on gold bangle only and that too was seized in spite of warning the same and was visible to naked eye. 5.9 That to confiscate the goods absolutely an officer of customs can forcibly obtain a statement from passenger implication any name as owner. That the department did not give any Show Cause Notice nor do they find the receiver. That this clearly shown it is all fictitious. 5.10. The respondent also places reliance on the following case laws:- * Yakub Ibrahim Yusuf Vs Commissioner of Customs (Mum) 2011(263) ELT 685 * Revision Application No. 373/22/B/2009/RA.Cus 6. Personal hearing was scheduled in this case on 04.08.2015, 02.09.2015 and 15.09.2015. The representative of the respondent Shri Ganesh advocate appeared for hearing on 04.09.2015, reiterated the cross objection filed to the Revision Application. The respondent vide her fax letter dated 02.09.2015 sought exemption from appearing personally and requested that her counter r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is was not concealed in any ingenious manner and is a Sri Lankan passport holder with no offence registered previously. In the counter to the Revision Application filed by the Department it is once again claimed that the bangle was personal effects covered under Appendix E of rule 7 of Baggage Rules and can be cleared free of duty on the condition of re-export. 11. Government notes that in the impugned Order-in-Original the record of personal hearing reads as under: The passenger Smt Dieshwary appeared for the personal hearing before me on 26/06/2012. During the course of the hearing, the passenger stated that the gold bangle weighing g87.5 grams was handed over to her at Colombo by one Shri Satish who runs a goldsmith shop at Colombo; that the said gold bangle is to be handed over as one Shri Thangaraj outside Chennai Airport; that she had done this for a consideration as told by Shri Satish that the Air Ticket for travel would be arranged by him; that she had done this without applying her mind and prayed for lenient view 11.1 There is nothing on record to show that the said submission has been made under any pressure or duress. In fact it is undeniable an volunta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 in WP No. 21086/2002 in the case of Aiyakannu Vs. JC customs reported on 2012-110L-806-HC-MAD-Cus has also held as under:- Petitioner being a foreign (Sri Lankan) national is not entitled to import gold in terms of clause 3 of foreign Trade (Exemption from application of Rules in certain cases) order 1993/as it will apply to the passenger of Indian origin attempt to smuggle 10 gold bars with Foreign marking wrapped in carbon paper by concealing in baggage justifies the order of absolute confiscation. 12.3 Government also notes that Hon ble High Court of Bombay in its judgement dated 23.07.2009 in the case of UOI Vs. Mohammed aijaj ahmed (WP No. 1901/2003) reported as 2009 (2144)ELT 49 (Bom.) has set aside the order of CESTAT ordering to allow redemption of gold and upheld the absolute confiscation of gold ordered by commissioner of Customs. In this case the gold did no belong to passenger Mr. Mohammed Aijaj Ahamed who acted as carrier of gold. The said order of Bombay High court was upheld by Hon ble Supreme court in its decision reports as 2010 (253) ELT E83 (SC). Further the Hon ble High High Court of Chennai in the case of S. Faisal Khan vs. Joint Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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