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TMI Blog2016 (8) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... 43/Cus/APPL-LKO/LKO/2015 dated 02/09/15 passed by the Commissioner (Appeals) Central Excise, Customs and Service Tax, Lucknow. The issue in this appeal is whether under the facts of circumstances whether absolute confiscation was warranted for the two Gold Bars/Biscuits from each of the respondents weighting 111 gms approximately each, which was not declared to the Customs and found while respondents were walking out through green channel. 2. The brief facts are that the respondents arrived at Lucknow Airport from Saudi Arabia on 19/01/14. Both the respondents were having an Indian passport and were passing through green channel were intercepted by Customs and on the disembarkation card handed over by them, no dutiable goods were mentioned. On suspicion, the baggage of the respondents/passengers were taken for the X-Ray, scanning, in which no dutiable goods were found. Thereafter, during process of frisking, while checking the wallets, two gold bars each, wrapped in white paper and tape were recovered from the purse of each of the respondents. The said gold bars were marked as /IHBTM, SUISSE, 10-Tolas, Fine Gold, 999.9. The said gold bars subject examination approved values, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 112 and Section 114AA of the Act. 4. The respondent contested the show cause notice and filed written statements. Mazaharul Haque stated that on arrival at Lucknow Airport, and he was waiting at conveyer belt for his luggage, one Inspector of Customs came and enquired from him whether he had anything to be declare. The Respondents admitted that he had two gold bars each wrapped with white paper and kept in the leather wallet in his pocket of the shirt. Thereafter, he was taken to Customs office, and asked to sit in the room and wait till 8:30 PM, when an officer asked him to sign his statement as dictated. The respondent tendered his statement as was dictated to him and the same was not voluntary true and the respondent was bringing these two gold biscuits for the marriage of his sister. It was not concealed anywhere but kept in his wallet in the pocket of his shirt along with the purchase receipts. The gold biscuits, wallet, Nokia mobile phone and the purchase receipt of gold biscuits were taken over by the seizing Officer and a confessional statement had been extracted from him by intimidation and detaining him late in the night. The respondent could not dare to refuse fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to have been declared orally on being intercepted by the Customs Officer at the conveyer belt. It was further found that the respondents have returned to India after staying abroad for more than one year and hence, they were eligible for bringing gold up to I Kg. Further, it is admitted fact that they have imported two gold bars/biscuits each weighting about 116 gm each or 232 gms approximately by each of the respondents. It was further found that the quantity of gold imported by the respondents, cannot be termed as commercial quantity and further the gold/goods being carried by them, are otherwise permissible for import subject to declaration as per the baggage Rules, 1998. As such, they have violated the para of 2.20 of Foreign Trade Policy-(2009-14) read with clause 3(1)(h) of Foreign Trade (Exemption from application of Rules in certain cases) Order, 1993 and the provisions of Foreign Trade (Regulation) Rules, 1993. The imported gold was held to be illegally imported as not declared properly in terms of Section 77 of the Act and was held liable to confiscation in terms of Section 111 of the Customs Act, 1962. The Nokia mobile phones were held not liable to confiscation. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents, though the actual owner of the goods, i. e. Shri Wali, who is known and the same is in contravention of section 125 (1) of the Customs Act. 7. The learned Commissioner (Appeals) was pleased to dismiss the appeals of both the respondents herein and the Revenue observing that it is a case of importer import of goods and hence, liable to confiscation and not absolute confiscation. Further, absolute confiscation is a matter of discretion under circumstantial exigencies which comes into play in such cases where no claimant of trapped goods is identifiable/available. In the present case, since the concerned persons or the respondents from whose the possession, the goods were seized, are available, hence, it makes no sense to confiscate the goods in absolute terms. He further found that the address of Shri Wali is not available which indicates that the person, who have handed over the gold bars to the respondents, is not known by location or otherwise. Section 125 of the Customs Act, 1962 while using the term owner , identifies such owner as a person to whom the goods may be redeemed practically. It is for this reason that section 125 of the Act, also prescribes that wher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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