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TMI Blog2016 (7) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the facts and circumstances of the case redemption fine and penalty under relevant provisions of the Act ibid has been rightly imposed on the applicant for the offense committed. The quantum of penalty is reasonable and commensurate to the nature of the offense where the gold has been sought to be smuggled by deliberate concealment. Therefore, the plea of the applicant that redemption fine and penalty imposed is too harsh is not tenable. The Revision application is rejected being devoid of merits. - Decided against the applicant. - F.No.372/03/B/14-RA-CUS - ORDER NO. 40/2016-CUS - Dated:- 10-5-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This Revision Application is filed by Shri Abdul Salam Chamundi (hereinafter referred to as the Applicant) against the Order-in-Appeal No. 30/Cus(Bag)/Kol(AP)/ 2013 dated 06.12.2013 passed by Commissioner of Customs (Appeals) Kolkata, with respect to Order-in-Original No. 43/2013 dated 01.05.2013 passed by Additional Commissioner of Customs, Kolkata. 2. Brief facts of the case are that acting on a specific intelligence watch was kept on a passenger named Shri Abdu Salam Chamundi s/o Shri Mohammad Bapu Chamundi, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be Gold 75 Ornaments in chain form weighing 302 grams made of yellow metal 2. Ornaments made of yellow Metal believed to be Gold 107 Ornaments in chain form weighing 714 grams made of yellow metal 3. Ornaments made of yellow metal believed to be Gold 152 Ornaments in chain form weighing 824 grams made of yellow metal 4. Ornaments made of yellow metal believed to be Gold 77 Ornaments in chain form weighing 308 gram made of yellow metal believed to be Gold 5. Ornaments made of yellow metal believed to be Gold 90 Ornaments in chain form weighing 1002 grams made of yellow metal 6. Ornaments made of yellow metal believed to be Gold 61 Ornaments in chain form weighing 200 grams made of yellow metal 7. Currency of foreign origin 1 3105 Dinar Dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nating was found; that his personal search in presence of a Gazetted officer and two independent witnesses was conducted after serving him notice under Section 102 of the Customs Act, 1962 and officers recovered ornaments made of gold of different weights kept in in six yellow plastics packets as mentioned in the inventory list dated 21.06.2012 to the panchanama; that those six packets were concealed by him in the socks covered by the knee caps; that he had intentionally and deliberately concealed the gold ornaments for the purpose of smuggling those into India to hoodwink the Customs officers and did not keep those in the baggage to avoid being apprehended during X-ray of the same; that in an earlier occasion also he had carried such types of ornaments and arrived at Mumbai Airport from Dubai via Doha; that initially he was working in Dubai in different shops such as Damas Jewellery shop; that for the last one year he had been working in trading of garments from Mumbai to Dubai; that on 21.06.2012 while going from Goa to Dubai he was directed by one person named Damodi, resident of Bhatkal, whose phone no. was 08904433031, to pick up the gold ornaments from Baffle Jewelers, Gol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 104 of the Customs Act, 1962 with the prior permission of competent authority. He was produced before the Ld. C.J.M. of Barasat Court on 22.06.2012 and was granted bail by the Ld. C.J.M. on the same day. 2.5 On investigation of the mobile no. given by the applicant, it was revealed that the number belonged to one Shri Munawar Hussain Damdaleu, Anjum Nasheman, Navayat Colony, Bhatkal. However, enquiries made with his parents residing at his address revealed that Shri Munawar Hussain Damdaleu was residing along with his family at JP Nagar Bangalore and they were not aware about his complete address. 2.6 A Show Cause Notice dated 04.12.2012 was issued to Shri Abdul Salam Chamundi proposing confiscation of goods mentioned at Sl. No. 1 to 6 of the Table under Section Ill (d), (j), (i) and (m) of the Customs Act, 1962, confiscation of goods at sl.no. 9,10 11 of the Table under Section 119 of the Customs Act, 1962 and imposition of penalty under Section 112(a) and (b) of the Customs Act, 1962 for the confiscation of provisions of Customs Act, 1962. Upon adjudication of the Show Cause Notice, the Additional Commissioner of Customs passed Order-in-Original No, 43/2013 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... armaceuticals Ltd Vs Commissioner of Customs Mumbai 2005 (186) ELT 564 (Tri Mum). V.P. Hameed Vs Collector of Customs, Bombay 1994 (73) ELT 425 (Tri). Kader Mydin Vs Commissioner of Customs (Prev), West Bengal 2001(136) ELT 758 (Tri-Kol). 5. A show cause notice was also issued to the Respondent Commissionerate on 14.12.2015, in response to which the following submissions have been made: 5.1. That the contention of the applicant that gold is not a prohibited item does hold ground in light of the judgement of 0m Prakash Bhatia Vs Commissioner of Customs 2003 (6) SCC 161 which states that: 10-From the aforesaid definition, it can be stated that (a) if there is any prohibition of import or export of goods under the Act or any other law for the time being in force, it would be considered to be prohibited goods; and (b) this would not include any such goods in respect of which the conditions, subject to which the goods are imported or exported, have been complied with. This would mean that if the conditions prescribed for import or export of goods is not complied with, it would be considered to be prohibited goods. 5.2. That applying the ratio of the judgement by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onafide baggage items such as 562 pieces of gold chains valued at ₹ 85,14,265/- concealed on the body of the passenger. The applicant had not-declared the goods and hence the goods were seized under reasonable belief that these constituted non bonafide baggage which were smuggled into the country and therefore, liable for confiscation under the provisions of the Customs Act, 1962. In his voluntary statement recorded under Section 108 of the Customs Act, 1962 he admitted the he was not the owner of the impugned goods but just a carrier working for a monetary gain. A Show Cause Notice was issued to him and subsequently the case was adjudicated vide Order-in-Original No. 43/2013 dated 01.05.2013 ordering confiscation of seized goods valued at ₹ 85,14,265/- with an option to redeem the same on payment of redemption fine of ₹ 25,00,000/- and imposition of personal penalty of ₹ 10,00,000 /- on the applicant. Aggrieved by the said order, the applicant filed appeal before the Commissioner (Appeals) who vide Order-in-Appeal No.30/Cus(Bag)/Kol(AP)/2013 dated 06.12.2013 rejected the appeal of the applicant. Now the applicant has filed this revision application under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor did he declare the impugned goods that were in a substantial/commercial quantity. Instead he had carefully concealed them on his person to smuggle it into the country and to hoodwink the authorities, Hence, the same cannot be treated as bonafide baggage in terms of Section 79 of the Act ibid. The said cold is imported in violation of provisions of Section 77, 79, 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), (j), (l) and (m) of the Customs Act, 1962. 10.3. Therefore, Government finds no reason to interfere with the order of the lower authority ordering confiscation of the impugned gold under Section 111 (d), (j), (I) and (m) of the Act ibid. 11. Government further finds that in view of the facts and circumstances of the case redemption fine and penalty under relevant provisions of the Act ibid has been rightly imposed on the applicant for the offense committed. The quantum of penalty is reasonable and commensurate to the nature of the offense where the gold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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