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TMI Blog2020 (7) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscate of gold bars. The absolute confiscation of gold bars ordered by the adjudicating authority is proper and legal - the penalty imposed by the adjudicating authority needs no interference - appeal dismissed. - Customs Appeal No.13152 of 2018-SM - Final Order No. A/ 11112 /2020 - Dated:- 10-6-2020 - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR Shri Hardik Modh, Advocate for the Appellant Shri.R.B. Bhashkar, Superintendent (AR)for the Respondent ORDER The brief facts of the case are that the appellant Shri. Batra Jay is an Indian Citizen is holding Passport No. 9766015 and had arrived from Dubai at Sardar Vallabhbhai Patel International AirPort (SVPI airport) at Ahmedabad on 19.03.2015 by Spice Jet Flight No. SG-16. The appellant was carrying two gold bars which were purchased by him from M/s. Lakhoo Jewellery Trading Company L.L.C by paying the amount of DHS, 32,330. The appellant strapped the gold bars under the socks with tape. He was also carrying purchase invoice of the said Gold Bars. The appellant on arrival crossed the green channel, thereafter, the Customs Officer apprehended some suspicion and checked the appellant. Thus, the gold bars c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nition of prohibited goods provided under Customs Act but due to the manner in which it was attempted to be cleared by the appellant with the intention to evade payment of Customs duty. He submits that as per definition of prohibited goods under Section 2 (33) of the Customs Act that the nature by which of goods attains the status of prohibited goods is not due to the manner of clearing of the goods but by the inclusion of goods under the list of prohibited items under Custom law or any other law in force. In the present case, the gold bars is bearing manufactures or refiners engraved Serial No and weight given in metric unit imposes of Custom duty on 10% the Customs duty @ 10% as per Serial No 323 of Notification No. 12/2012- Cus dated 17.02.2012. Hence, gold bars is not a prohibited goods as per the definition provided under Customs law. He further submits that the Order-In-Original dated 27.04.2016 has been passed beyond the scope of show cause notice. The show cause notice alleged that two gold bars were prohibited on account of violation of provisions of Section 7 of the Foreign Trade (Development and Regulation) Act, 1992. Whereas, Learned Additional Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasoning of the appellant the Customs Officers seized the gold and alleged that he was smuggling the gold into India. More over the appellant had shown the invoice of the purchase of the gold bars to the Customs Officer thereby showing the valuation of the gold. Therefore, from the course of event it can be seen that there was no intention for misdeclaration of valuation of the gold bars and the gold bars are not liable to for confiscation. The intention of the appellant was to inquire about the process how to declare the gold in the disembarkment slip and not to conceal the same but such opportunity for explanation was not provided to the appellant, therefore, there was no actual misdeclaration of a dutiable goods which was not prohibited and further there was no intention of the appellant for such evasion of Customs duty. He submits that the Learned Commissioner (Appeals) failed to appreciate the appellant produced the purchase receipts of the gold bars. In this support, he place reliance on the judgment in the case of Nand Kishore Somani Vs. CST reported in 2016 (33) ELT 448. 5. He further submits that the appellant imported gold bars which are not prohibited goods. As the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Customs Officer in regards to the gold bars which were purchased by the appellant from Dubai for personal use. Since there was no misdeclaration of fact and the goods were not liable for confiscation, therefore, the provision to section 112 (b) is not applicable. As regard the penalty imposed under section 114 (AA), he submits that since the appellant has not signed or used any false documents, therefore, the penalty under section 114 (AA) cannot be imposed. 7. Without prejudice he further submits that when the goods are not liable to be confiscated, no penalty can be imposed under section 114AA of the Customs Act. He placed reliance on the judgment in the case of Deekay Shipping Services Vs. Commissioner of Customs, Mumbai-2011 (264) ELT 269. Without prejudice he further submits that there is no mala fide on the part of the appellant. He submitted that mens rea is an essential requirement for imposing penalty under section 114AA of Customs Act. He placed reliance on the following judgment:- Suryakiran International Limited Vs C.C, Hyderabad-2010 (259) ELT 745 (Tri-Bag) In support of this above submissions, he placed reliance on the following judgments:- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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