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TMI Blog2016 (7) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... le goods like gold below the pant belt. It is a fact on record that during the search, it was found that the applicant had concealed two packets wrapped with brown tape around his stomach under the pant belt which on examination, were found to contain in all 44 gold chains of different types/sizes, totaling weighing 500 grams. Also, in his statement recorded under Section 108 he admitted that he had concealed the above said gold chains in order to avoid Customs Duty. Government observes that one of the contention of the applicant 'is that there is no column in the declaration form for declaration of gold and cigarettes. This is incorrect in as much as the declaration form has the column for declaring dutiable goods and the applicant cigarettes and the gold brought in by knew that the impugned goods had to be declared but has not declared it purposely with the intention of evading duty. This plea also holds no ground in view of the fact on record that the applicant is a frequent traveller. Government also observes that the applicant's averment on cross examination of witness does not cut any ice to prove his innocence. - confiscation and levy of penalty upheld - Decided against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Badiyar (brother of Shri Bayar Mohammed Asraf), Jet Privilege card bearing No. 135528584, two old boarding passes of Kingfisher and Jet Airways, two old e-tickets, one old boarding pass for journey on 18th April 2010, two baggage slips bearing No. EK 489538 and EK 489583, hN0 invoices evidencing foreign currency cash purchase, ten bills purportedly showing purchase of burkha cloth in Dubai, one old e-ticket for travel on 16th January 2010, one e-ticket for travel on 30th May, one small note book containing certain personal entries, one Customs declaration form and one Nokia mobile model No. 1202-2 with Airtel SIM bearing No. 9867861422, one belt and one SIM card in respect of mobile No. 050-2787106 (issued in Dubai by Ittasalath service provider). 2.3. The gold chains were seized under Section 110 of Customs Act, 1962. The said Superintendent also informed that the cigarettes totaling 164 cartons were also liable for seizure as the same had been brought in Commercial quantity in contravention of Baggage Rules and also did not comply with the provisions laid down in the Cigarettes and other Tobacco products (Packaging and Labeling) Rules, 2008 and were also liable for seizur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he had concealed 44 gold chains in two packets on his body (in stomach area below the belt); that the said officers have removed the packets in front of him and the packets were opened and counted in his presence and they were weighed and found to weigh about 500 grams totally; that apart from this he also had personal clothes; that these gold chains were purchased by him out of his savings from a shop in Dubai (namely Al Jara on Dehra Nife road) and he wanted to conceal the same in his body in order to avoid payment of Customs duty; that the Cigarettes were purchased from a shop in Dubai for 1740 Dirhams; that these gold items were to be sold to different shops at Kasargod to make profit; that these gold items were purchased by him to make profit and have not been given to him by anybody; that he also understands that concealing of gold is an offence under the provisions of Customs Act; that on his previous visits to India, he used to always depart from Mumbai Airport and he has arrived at Bengaluru International Airport about 10 times in the last two months. 2.5. Shri Bayer Mohammed Asraf was arrested at 1430 hrs. on 22.04.2010 by issuing an Arrest Memo and after explaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment. That the allegation that the applicant intended to evade payment of Customs duty does not stand the test of law. 4.2 That the Customs declaration form prescribed by the department does not carry any specific column/row/space, where the passengers can declare details of the goods brought by them. That the form requires the passenger to declare the name, flight number, number of hand baggage, number of checked-in-baggage, and value of goods imported, whether they are carrying any plants or animals and signature. That the applicant had brought cigarettes for personal consumption and old gold ornaments (polished) and wanted to declare the same in the Customs declaration form, in the absence of any specific place in the form where he could declare the above said goods; he had approached the Customs officer on duty, to help him in making a true declaration. That despite the lacuna in the Customs declaration form, the applicant was arrested and his goods were seized, without giving him an opportunity to make the necessary declaration under Section 77 of Customs Act, 1962. 4.3 That it was alleged that the applicant had concealed two packets wrapped with brown tape around his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an evidence to prove that the cigarettes brought by the applicant were for sale/for any other commercial purposes and the gold ornaments are new ornaments purchased abroad. That the applicant was induced with letting him off if he signs all the documents shown to him and therefore the applicant under the above said inducement as well as threat/duress had signed the various papers shown to him, he being an illiterate, he could not understand a single word of the documents shown to him and using such documents to prove the alleged offence committed by him would amount to travesty of justice. 4.7 That in addition to cigarettes and gold ornaments, the Customs officer have also seized one boarding pass in respect of seat No. 33K (flight No. EK 568), electronic ticket for travel from Dubai to Bangalore along with three baggages slips bearing No. EK 482581, EK 482580 and EK 482579 pasted on its backs, five photographs of the applicant, one photograph of Shri Bayar Ismail Badiyar (brother of Shri Bayer Mohammed Asraf), jet privilege card bearing No. 135528584, two old boarding passes of Kingfisher and Jet airways on two old e tickets, one old boarding pass of Kingfisher and Jet airway ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le rates. That the law does not define what commercial quantity of cigarettes is to be brought. That when the cigarettes have been brought by the applicant only for personnel consumption and not for sale, the adjudicating authority cannot assume that the quantity brought by him is in commercial quantity and is meant for sale. That the investigation department has not produced any evidence before the adjudicating authority to prove that the cigarettes brought by the applicant were in fact for sale and not for personal consumption. That the cigarettes brought by the applicant does not hit the Board's circular No.29/2000-Cus issued vide file No.495/19/99-Cus VI dt. 11.02.2000 and free allowance has to be allowed to the applicant, which is well within the free allowance allowed to him. That the applicant should have been allowed to clear the cigarettes brought by him on the payment of appropriate duty on the value declared by him. 4.8.3. That the provisions of Cigarettes and other Tobacco Products (Packing and Labeling) Rules 2008 requiring every package of cigarettes manufactured or sold in India to have a statutory warning as specified in the schedule are not applicable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant abroad and had imported the same in violations of the Customs provisions, which has not been proved by the investigation. 4.8.6. That the applicant satisfies all the conditions mentioned in Baggage Rules. That the applicant is a permanent resident of Dubai since from 2008. That the residence permit is still valid, it can be safely assumed that the applicant has not stayed out of Dubai for more than six months in the past (ignoring the short visits, if any). That the applicant is eligible to bring up to 10 kg of gold, on payment of appropriate duty. That the quantum of gold brought by the applicant is only 500 grams. That the gold ornaments brought by the applicant were raw ornaments, he was eligible to bring the same, as per the above said provisions of the Baggage Rules. That he should have been allowed to import the same on payment of appropriate duty, that the officers chose to arrest him and proposed for confiscation of gold, which is totally arbitrary and illegal under the Baggage Rules. 4.8.7. That the declaration form requires the passenger to declare the name, flight number, number of hand baggage, number of checked-in-baggage, value of goods imported, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Green Channel. Further, under the statement given to the Customs officers under Section 108 of the Customs Act 1962, he admitted that after passing through immigration and after collecting his baggage from the International baggage claim area, he was moving out of the Customs Area through the Green Channel Gate; that the officers on duty asked him to come inside and go to the red channel for detailed examination of his baggage; that on examination they found 164 cartons of Cigarettes, one taka of black burkha cloth neatly packed in two rexin bags, one bag wrapped with cotton cloth and three plastic covers; that the officers then requested him to come to the Customs Room and conducted a personal search of his body; that he had concealed 44 gold chains in two packets on his body (in stomach area below the pant belt); that the said officers have removed the packets in front of him and the packets were opened and counted in his presence and they were weighed and found to weigh about 500 grams totally; that apart from this he also had personal clothes; that these gold chains were purchased by him out of his savings from a shop in Dubai (namely Al Jara on Dehra Nife road) and he wanted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which were concealed through the green channel without declaring the same to the Customs and were recovered from him only upon examination of his baggage and his personal search; that he was avoiding payment of Customs duty and the items were to be sold to different shops at Kasargod to make profit. 8.1.In this regard, Government also notes that the statement recorded before the Customs officers is valid evidence. Hon'ble Supreme Court has held in the case of Surjit Singh Chhabra Vs. Union of India 97(84) ELT 646 (SC) that statement made before Customs officers though retracted within six days is an admission and binding since Customs officers are not police officers under Section 108 of Customs Act 1962. A similar view has been taken by the Apex Court in Naresh J. Sukhawani vs Union of India 1996(83) ELT 258(SC) holding that statement before a Customs Officer under Section 108 of the Customs Act 1962 is a material piece of evidence. So the statement given before Customs is valid evidence and subsequent retraction is only an afterthought in an attempt to get goods released on payment of fine. Further, Government notes that the applicant had been made to understand the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The applicant has failed to provide any evidence on record that the gold was carried by him from India. Moreover the onus to prove that the goods are not smuggled under Section 123 of the Customs Act, 1962 lies on the applicant and not the department as claimed by the applicant. 9.3.Government finds no merit in the plea of the applicant that it is difficult to conceal valuable goods like gold below the pant belt. It is a fact on record that during the search, it was found that the applicant had concealed two packets wrapped with brown tape around his stomach under the pant belt which on examination, were found to contain in all 44 gold chains of different types/sizes, totaling weighing 500 grams. Also, in his statement recorded under Section 108 he admitted that he had concealed the above said gold chains in order to avoid Customs Duty. 9.4.Therefore, Government holds that the impugned gold chains have been rightly order for confiscation under provisions of Section Ill(d), (i), (l), (m) and (o) of the Customs Act, 1962. 10.Government further observes that the applicant had brought as personal baggage 164 cartons of Cigarettes bearing the marking Filter Kretek Cigarettes, G ..... X X X X Extracts X X X X X X X X Extracts X X X X
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