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TMI Blog2021 (6) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... ave secured the CCTV footage. Since this was not done, adverse inference must necessarily be drawn against them. Where the fundamental right of the noticees to fair adjudication has been violated, adjudication proceedings cannot be allowed to continue for the purpose of determining their guilt - the petitioners' defence has been prejudiced because of the non-production of CCTV footage, the adjudication proceedings initiated against them can be allowed to continue only for the limited purpose of determining whether the goods in question can be allowed to be re-exported or whether they can be cleared on payment of applicable duties. The petitioners are permitted to apply to the jurisdictional passport authority for issuance of duplicate passport and subject to fulfilment of the usual formalities, the jurisdictional passport authority is directed to issue duplicate passport to the petitioners without delay. Petition disposed off. - WP(MD)Nos.3917 & 3918 of 2020 And WMP(MD)No.5459 of 2021 - - - Dated:- 26-4-2021 - Honourable Mr.Justice G.R.Swaminathan For the Petitioners : Mr.Zahir Hussain For the Respondents : Mr.R.Aravindan, CGSC for R1 R2, Ms.Victor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They intended to declare what was in their baggage before the customs authority and clear them after paying the applicable duty. But, before they could do so, they were intercepted and the goods in question were seized. They were subjected to indignities. They were made to squat and fingers were inserted into their anus. They were arrested and granted conditional bail on 07.11.2019. After coming out, the petitioners retracted the statements obtained from them. The petitioners replied to the show cause notices dated 29.06.2020. They sought permission to re-export the seized goods. Since no response was forthcoming, the present writ petitions were filed. 5.The allegations made by the writ petitioners have been strongly controverted by the Directorate of Revenue Intelligence. They received specific intelligence that passengers arriving at Trichy from Kuala Lumpur, Dubai, Sharjah and Singapore through four particular flights at around the midnight on 05.11.2019 would be bringing huge quantities of 24ct gold in the form of crude chain and paste and attempt to smuggle the same without payment of applicable customs duty. The information turned out to be well founded. Among the 640 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tially, a submission was made that since the petitioners had brought prohibited goods into India, they cannot be permitted to be reexported. They can only be confiscated. As already pointed out, the petitioners were carrying gold as well as electronic goods. Electronic goods are obviously not prohibited items. They can be cleared after making declaration and paying the applicable customs duty. Gold is also not a prohibited item for import. It would only come under the regulated/restricted category. Of course, the Division Bench of the Madras High Court in the decision reported in 2016 (341) E.L.T 65 (Mad) (Malabar Diamond Gallery P.Ltd vs. Addl.Dir.General, Directorate of Revenue Intelligence, Chennai) , went on to hold that though gold is not notified as one of the prohibited goods, when there is failure to comply with the conditions subject to which goods are to be imported, they are liable for confiscation. Prohibited goods has been defined in Section 2 (33) of the Customs Act, 1962. The Division Bench held that the provision cannot be narrowly interpreted so as to hold that gold is not an enumerated prohibited goods to be imported into the country. Section 11-A (a) de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India and Metals and Mineral Trading Corporation subject to conditions (i) and (ii) above. He is required to file a declaration in the prescribed Form before the Customs Officer at the time of arrival in India stating his intention to obtain the gold from the Customs bonded warehouse and pay the duty before clearance. (vii) The rate of duty levied would be as follows: S.No. Description of Goods Rate 1. Gold bars, other than tola bars, bearing manufacturer's or refiner's engraved serial number and weight expressed in metric units and gold coins @ 12.5% + Social Welfare Surcharge @ 1.25% 2. Gold in any form other than at S.No.1 above including tola bars and ornaments, but excluding ornaments studded with stones or pearls @ 12.5% + Social Welfare Surcharge @ 1.25% Of course, as held by another Division Bench of the Madras High Court in the decision reported in 2009 (247) E.L.T. 21 (Mad) (Commissioner of Customs vs. Samynathan Murugesan) , if the manner of import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents allege that the petitioners were intercepted when they were about to exit the green channel. The petitioners on the other hand claim that after the completion of immigration formalities and before crossing the DFMD, they were taken to custody. This controversy can be very easily resolved by production of the CCTV footage. The petitioners have not raised this contention as an afterthought. Right from the beginning this was their stand. Therefore, I impleaded the Airport Authority and directed them to make available the CCTV footage. The standing counsel for the Airport Authority after getting instructions submitted that since the occurrence had taken place in the 1st week of November, 2019, the footage got erased a few weeks thereafter and therefore, the direction issued by me in February, 2021 is impossible of being complied with. 12.The petitioners could have established their defence only by producing the CCTV footage. They have been denied access to this vital piece of evidence. The best evidence was very much available and it was allowed to vanish. The airport authority is a limb of the State. DRI cannot wash away its hands by taking the plea that they have no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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