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TMI Blog2016 (6) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... Gold smuggled by way of concealment and by ways of non-declaration knowing well that she was not an eligible passenger to import gold - Whether the import of impugned goods is prohibited or not - Held that:- the respondent was not eligible to import gold either in terms of Notification 12/2012-Cus dated 17.03.2012 nor under Rule 6 of Baggage Rules ibid. She also did not declare the impugned gods that were in a substantial/ commercial quantity. Hence, the some cannot be treated a bona fide baggage in terms of Section 79 of the act ibid. the said gold Imported in violation of foreign Trade provisions of Sections 77,79,11 of Customs Act, 1962; para 2.20 of Exim policy of 2009-14 and provisions of Section 3(3) and 11(1) of Foreign trade (Development & regulation) Act, 1992. The same would thus appropriately constitute “prohibited goods” liable to confiscation under Section 111 (d) and (i) of the Customs Act, 1962. Therefore, the Government upholds the Department’s contention that absolute confiscation is legally warranted. Whether the respondent is the owner or carrier of the impugned gold - Held that:- there is no dispute about the fact that in her statement, the respondent has cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Customs, Chennai (Appeal-I) with respect to Order-in-Original No. 17/2015 dated 20.042015 passed by Joint Commissioner of Customs (Adjudication). The Hon ble High court of Chennai in W.P. 22438 of 2015 filed by the respondent directed that the Revisionary Authority dispose of the revision application against Order-in-Appeal No.331/2015 date 24.06.2015 after following due process of law within a period of eight weeks from the date of receiving the order. Government also takes up revision application against Order-in-Appeal No. 400/2015 dated 06.08.2015 as both pertain to a common Order-in-Original No. 17/2015 dated 20.04.2015. 2. Brief facts of the case are that on 14.05.2014 the respondent passenger by the name Smt. shaik Shamim Banu, wife of Shri Shaik Mujeeb, holder of Indian passport number F2057845 issued at Hyderabad, arrived at Chennai Airport from Kuwait by Kuwait Airways flight no KU 343 dated 13.05.2014. She was intercepted on reasonable suspicion, while walking through green channel for the exit by Customs Officer. The said passenger was asked specific question as to whether she was carrying any gold/contraband goods either in her baggage or on her person to whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued at ₹ 4000/-along with white colour bra worn by her which was used to conceal gold were seized under he mazhar as material objects. Rest of her personal effects worth ₹ 4000/- were returned to her in the presence of witnesses. 2.1 The passenger Smt. Shaik Shamim Banu, in her statement dated 14.05.2014 recorded under Section 108 of the customs act, 1962 inter-alia stand; that her husband sheri Shaik Mujeeb is working in Kuwait aas driver for the past 30 years and earning ₹ 30,000/- per month; that she visited Kuwait last month; that the day before she was leaving for Chennai, her husband gave her 4 gold cut bars and 2 nos. gold bangles totally weighing 1375 grams and asked her to conceal them in her bra by wrapping the gold in a white tissue paper and polyhthene cover and to take to India without declaring to Customs; that one Shri Mahaboob Basha would come to their home in India and would give her ₹ 100,000/- and she should in turn hand over gold to him; that as she needed money of her daughter s marriage, she agreed to smuggle the impugned gold into India; that she did not have any legal documents which support the import of the impugned gold; that sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas, Department s appeal for setting aside the impugned Order-in-Original and confiscating the goods absolutely as the passenger was not the genuine owner of the goods but a carrier and is not entitled to redemption fine was later set aside by the commissioner (Appeals) vide its Appellate order No. 400/2015 dated 06.08.2015 as infructuous on the ground of merger. 4. Being aggrieved by both the above impugned Order-in-Appeal, the Department has filed these revision applications under Section 129DD of Customs Act, 1962 before the Central Government on the following common grounds: 4.1 That the Order-in-Appeal are neither legal nor proper in as much as the passenger had attempted to smuggle the gold by way of concealment and by ways of no-declaration knowing well that she was not an eligible passenger to import gold and thus has a culpable mind to smuggle them into India without payment of duty. 4.2 That the passenger has not declared to the Customs officer, the possession of gold which was concealed under brassier worn by her. The passenger, has contravened Sections 77 and 11 of Customs Act, 1962 read with Regulation 3(1) of foreign Exchange Management (Export and Import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Om Prakash Bhatia Vs Commissioner of customs reported in 2003 (155) ELT 423 (SC) has held that if there is any prohibition of import or export of goods under the act or any other law subject to certain conditions prescribed are not complied with it would be considered to be prohibited goods. * The Hon ble Supreme court in the case of samynathan Murugesan Vs commissioner of customs reported in 2010 (254) ELT a15 (SC) has held that as the passenger did not fulfil the basic eligibility criteria, which makes the imported item a prohibited goods. 4.4 That the appellate authority in his order has stated that ownership of the gold is established in para 21 of the Order-in-Original is not acceptable as the passenger herself in her voluntary statement given under Section 108 of Customs Act, 1962 has staed that her husband gave her 4 gold cut bars and 2 nos. bangles weighing 1375 grams and asked her to conceal them in her bra by wrapping the gold in a tissue paper and polythene cover and to take them out to India without declaring to Customs, to be handed over to Shri Mahaboob Basha who would come to their home in India and he in turn would give her ₹ 1,00,000/-. She needed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.6.2 the Hon ble High Court in the case of UOI Vs Mohammed Aijaj Ahmed in WP No. 19.01.2003 decided on 23.07.2009 reported in 2009(244) ELT 49 (Bom) has set aside the order of the CESTAT allowing the redemption of gold and upheld the order passed by the Commissioner of Customs ordering absolute confiscation of gold, as the gold did not belong to the passenger, who acted as a carrier of gold. the said order of Bombay High Court was uuheld by Hon ble Supreme court in its decision reported in 2010 (253) ELT E-83 (SC). 4.6.3 In the case of S. Faisal Khan Vs The joint commissioner on 13.09.2010, WP no. 34102 of 2003- Madras High Court has held that -----The order passed by the original authority, appellate authority and the Revisionary authority are cogent and supported by reasons. The authority recorded the voluntary statement under Section 108 of the Customs Act, 1962 wherein the petitioner had categorically admitted that he was taking the currency clandestinely on behalf of one Abudllah for monetary consideration. This particular evidence was held to be acceptable and cannot be brushed aside and there is no record to show that the statement of the petitioner was recorded und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department s appeal filed on 09.07.2015 also, the Appellate authority failed to examine the above aspects/facts and did not verify the issue on merit, but simply dismissed department s appeal is In fructuous on the ground of merger, which is not correct and legally no sustainable for the following reasons: 4.10.1 In party s appeal filed on 16.06.2015, the grounds were that the redemption fine and penalty imposed by the lower adjudicating authority were excessive and the passenger prayed for reduction of the same. The passenger did not contest the re-export option give by the lower adjudicating authority and the Appellate Authority has passed Order vide Order-in-Appeal C.Cus. 331/2015 dated 24.06.2015 by reducing the fine to ₹ 7,00000/- and the penalty to Rs..1,00,000/- without going into the merit of the case. 4.10.2 whereas, being aggrieved by the same order of the lower adjudication authority, the department has filed an appeal before the Commissioner of Customs (Appeal-I) on 09.07.2015 on the ground that t the order of the lower adjudicating authority giving re-export option to the passenger is wrong and the prayer of the department was that the subject gold atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 29.06.2015. The Hon ble High Court disposed off the Writ Petition vide its order dated 29/06.2015 which was received in this office on 26.11.2015 with the direction to the petitioner to place all their submissions as to substantiate their case before revisionary Authority and upon hearing them, Revisionary authority would pass the order within eight weeks of receiving the order, 6. In compliance of Hon ble High Court s order personal bearing was scheduled in these cases on 18.12.2015,13.01.2016 and 18.01.2016. 6.1 Shri T. chezhiyan, Advocate appeared on behalf of the respondent. He made another written submission to the Show Cause Notice mainly sating that under Section 129DD, Government can only annul/modify the order passed under Section 128A and cannot traverse beyond it. Also no new ground can be invoked in the revision stage belong the scope of the Show Cause Notice wherein grounds mentioned for convocation of goods are Section 111 (D) (I) of the Act. The goods are not prohibited in nature and have rightly been allowed for re-export on reduced fine and penalty. With regard to hearing held for revision of Order-in-appeal No. 400/2015 dated 06.08.2015, he also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal before Commissioner of customs Chennai (Appeal-I) by by the respondent as well as the Department. The respondent s appeal was decided by Order-in-appeal No.331/2015 dated 24.06.2015 allowing re-export of the impugned gold on reduced redemption fine of ₹ 7,00,000/- and personal penalty of ₹ 1,00,000/-. The Department s appeal on the other hand dismissed vide Order-in-appeal No.400/2015 dated 06.08.2015 as infructuous as it was filed after issue of Order-in-Appeal No. 331/2015 dated 20.06.2015 and wherein it is held that apparent remedy to this seems to be under Section 129 DD ibid. Aggrieved by both the impugned Orders-in-Appeal, the Department has filed the Revision Applications on grounds stated in para 4. 9. At the outset, Government observes that the Department s appeal against the impugned Order-in-Original before Commissioner (Appeals) pleading for absolute confiscation of the impugned gold was not considered on merits on the grounds of merger as passenger s appeal against the impugned Order-in-Original had already been decided by Order No.331/2015 dated 240.06.2015 dated 240.06.2015. The commissioner (Appeals) also held that the issue of Order-in-Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the passenger has no previous office registered against her and therefore, allowed re-export on reduced redemption fence and penalty. The Department on the other hand has contested that is cannot be ignored that it is a fact on record that the passenger who is not eligible to import gold walked through the green channel at the Airport and and had she not been intercepted she would have walked any with the impugned goods without declaring the same to Customs. The main contention of the Department is that the passenger has accepted that she was carrying the gold for monetary consideration and had obviously concealed the gold inside her bra and the same had not been declared in the Customs declaration card the passenger has also not fulfilled the conditions stipulated under Notification No. 12/2012-Cus dated 17.03.2012 as amended and Rule 6 of the Baggage rules. Therefore, it is pleaded that the passenger was not eligible to import the gold and accordingly the impugned orders of the lower authorities allowing redeeming of the goods an re-export are unlawful and has the effect of making smuggling an attractive proposition and be set-aside. 11. Government observes that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me cannot be treated a bona fide baggage in terms of Section 79 of the act ibid. the said gold Imported in violation of foreign Trade provisions of Sections 77,79,11 of Customs Act, 1962; para 2.20 of Exim policy of 2009-14 and provisions of Section 3(3) and 11(1) of Foreign trade (Development regulation) Act, 1992. The same would thus appropriately constitute prohibited goods liable to confiscation under Section 111 (d) and (i) of the Customs Act, 1962. 12.3 Therefore Government upholds the Department s contention that obsolete confiscation is legally warranted keeping in view the facts and circumstances of the case. 13. Another issue of contention is whether given the facts of the case, the respondent is the owner r carrier of the impugned gold. Based on the admission statement recorded under Section 108 of the Customs Act, 1962, the Department has contended that the respondent is nothing but a carrier of gold for monetary consideration. government finds that there is no dispute about the fact that in her statement recorded on 14.05.2014, the respondent has clearly admitted that she imported 1375 grams of 24 carat gold which was given to her by her husband who asked her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Bombay High Court was upheld by Hon ble Supreme Court in its decision reported in 2010 (253) ELT E83 (SC). Further the hon ble High Court of Chennai in the case of S. Faisal Khan vs. Joint Commissioner of customs (Airport) Chennai 2010 (259) ELT 541 (Mad) upheld absolute confiscation for goods carried on behalf of someone else for a monetary consideration. In the case of Ram Kumar vs. commissioner of customs 2015 (320) ELT 368 (Del) also the Hon ble High Court of Delhi has held that carrier is not entitled to benefit of Section 125 of Customs Act, 1962 Government, therefore, holds that in the present case the gold imported by the passenger as a carrier is liable for absolute confiscation as rightly pleaded by the Department. 17. Government further finds that the provision for re-export of baggage is available under Section 80 of the Customs Act, 1962. However, this Section is applicable only to cases of bonfire baggage declared to Customs, which the applicant failed to do. This the applicant is not eligible for re-export of impugned goods. In similar circumstances, Central Government has denied re-export of goods in the case of Hemal K Shah 2012(275) ELT 266 (GOI). Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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