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TMI Blog2017 (1) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... deemable on deposit of duty and fine. I further find that the penalty imposed on the respondents, is adequate - absolute confiscation not needed - appeal dismissed - decided against appellant-Revenue. - APPEAL No.C/70144 & 70145/2015-CU[SM] - FINAL ORDER NO-71006-71007/2016 - Dated:- 20-6-2016 - Mr. Anil Choudhary, Member (Judicial) Shri V.K. Shastri, Assistant Commissioner (AR), for Appellant Shri A.P. Mathur, Advocate, for Respondents Per: Anil Choudhary The revenue is in appeal against common Order-in-Appeal No. 337-338/Cus/APPL-LKO/LKO/2015 dated 31/08/2015 passed by the Commissioner (Appeals) Central Excise, Customs and Service Tax, Lucknow. 2. The issue in this appeal is whether under the facts of circumstances whether absolute confiscation was warranted for the two Gold Bars/Biscuits recovered 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. 3. 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 ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 (i), (l) and (m) of the Customs Act, along with confiscation of the two black color leather like material purse/wallet consisting white paper wrapped with cello tape used as concealing material under Section 119 of the Act ibid. Further, two Nokia mobile phones are also liable to confiscation under Section 111 of the Act being used for smuggling activity and further why not penalty be imposed upon the respondents under Section 112 and Section 114AA of the Act. 5. The respondent contested the show cause notice and filed written statements. Imtiyaz Idris stated that on arrival at Lucknow Airport, as he was waiting at conveyer belt for his luggage, one Inspector of Customs came and enquired from him whether he had anything to be declared. 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 biscu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulfillment of stipulated conditions. As the respondents failed to fulfill the declaration of the seized dutiable goods, the same were recovered by the Customs officers, on finding that the same are not declared in the disembarkation card, but the same was claimed by respondents 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 1 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 it was held, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Imtiyaz Idris (in Riyadh), 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 where the owner is not known, the option of redemption would be given to the person from whose possession or custody such goods were seized. Further, holding that the option of redemption given to the respondents by the adjudicating authority, is correct. Further, the quantum of redemption fine imposed, was also found to the proper and reasonable, so far, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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