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TMI Blog2020 (11) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the gold near the lifts. Further, the seizure of the gold took place at the aerobridge and according to the mahazar, the Respondent has not received the gold from the passenger nor has he come into contact with him or the gold. The entire case on the respondent has originated from the statement given by Shri Sahubar Sathik Hithayadullah in which he has stated that he was to proceed to lift to handover the gold to the Respondent. To put it shortly, there is no tangible involvement of the Respondent leading to seizure of gold. The passenger with gold was intercepted at the aerobridge itself, before the entire conspiracy took place. The officers along with the passenger contacted the respondent and intercepted him at the lift. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by Commissioner of Customs, Chennai (herein referred to as Applicant) against the Order No. 283/2016, dated 15-7-2016 passed by the Commissioner of Customs (Appeals), Chennai. 2. Briefly stated facts of the case are that the officers of Air Intelligence Unit on specific intelligence intercepted a passenger by name, Shri Sahubar Sathik Hithayadullah at the aerobridge who arrived at the Chennai Airport from Singapore as soon as he alighted from the flight. Examination of his baggage resulted in the recovery of 2300 grams of gold valued at ₹ 65,94,100/- (Rupees Sixty Five lacs Ninety four thousand One hundred) ingeniously concealed in a Cadbury s Milk Chocolate packet. Enquiries conducted revealed that the gold was to be hande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Respondent and Commissioner (Appeals) set aside the penalty imposed on the respondent. 5. The Applicant department has filed this Revision Application inter alia on the grounds that; 5.1 Shri Sahubar Sathik Hithayadullah in his voluntary statement informed that he was supposed to handover the gold to an Immigration staff on his mobile Number 9003610487; that he and the Immigration staff would meet in the passenger lift from the Immigration area in the first floor to the Customs Area; and thereafter the Immigration staff would smuggle the gold out of the airport without being detected by Customs; that he was not the owner of the gold and that he did not have any foreign currency to pay as duty for the gold imported as he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son came to the designated area immediately on receipt of the telephone call on his mobile and when intercepted and kept in a room, he tried to drop off the said mobile in an attempt to wash off his role. Hence, the respondent has abetted in the smuggling of gold for which action he is liable be penalized. The Order-in-Original dated 27-12-2015 has rightly imposed penalty under Section 112(a) of the Customs Act, 1962 on the appellant for his involvement in the entire gamut of smuggling. It is also seen that Shri Anbalagan along with the passenger had orchestrated this whole unscrupulous activity of smuggling of foreign origin gold bars into India from Singapore without declaring to Customs and without payment of duty several times in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 The noticee was now where connected with the alleged offence and the investigation carried out clearly shows that Section 112(a) cannot be liable on the noticee. The noticee is a police man serving in the Tamil Nadu Police and if stay is granted it would adversely affect his employment. 7. The Government has gone through the facts of the case. At the outset the Government observes that the officers of AIU have acted impulsively, and somewhat prematurely the passenger Shri Sahubar Sathik Hithayadullah was intercepted as soon as he stepped out of the Aircraft, at the aerobridge. It is therefore clear that the passenger was prevented from filing a declaration as required under Section 77 of the Customs Act, 1962. As a plan/conspiracy wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an offence yet to be committed. 9. Government further observes for penalty under Section 112(a) of the Customs Act, 1962, the offence should have taken place. If the entire conspiracy was allowed to take place and the Respondent was caught with the gold or had he taken out the gold out of the Airport, penalty would have become applicable. The Adjudicating Authority has imposed penalty under Section 112(a) on the Applicant. The Section 112(a) is reiterated below; 112. Penalty for improper importation of goods, etc. - Any person, - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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