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TMI Blog2021 (6) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Revenue is misconceived and has no legs to stand. Also, the source of gold jewellery he was wearing is cogently explained, which has not been found to be untrue. Penalty set aside - appeal allowed - decided in favor of appellant. - Customs Appeal No. 53695 of 2018-SM - FINAL ORDER NO. 51592/2021 - Dated:- 23-6-2021 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri S. Sunil, Advocate for the appellant Shri Y. Singh, Authorised Representative for the respondent ORDER This appeal is filed against order of absolute confiscation of gold jewellery weighing 547.5 gm. valued at ₹ 14,77,073/- seized from the possession of the appellant while he was in the transit area of the IGI Airport, T-3, New Delhi. Further, appellant was imposed a composite penalty of ₹ 3 lakhs under Section 112 and 114 AA of the Customs Act. 2. The brief facts are that the appellant (travelling from Bangkok to Kathmandu) had arrived at IGI Airport, T-3, New Delhi on 05.06.2016 from Bangkok by flight No. 9W0063 and was scheduled to take the next flight to Kathmandu after a few hours on 06.06.2016. He was intercepted by the officers of the Customs Intelligence Unit (CIU) in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any. (ii) He ventured into travelling job on persuasion of his nephew Shri Vikas Mittal, owner of M/s Iris Vacations Pvt. Ltd. (iii) He had joined the travel job since last month i.e. May 2016. (iv) He got lumpsum salary based on his performance. (v) His job profile was to escort the tourist groups to foreign destinations and manage tour arrangements for the groups at foreign destination during their stay. (vi) With regard to the question as to the entries in the Passport showing visit to Dubai 13 times, Bangkok 2 times and Nepal 4 times, he deposed that he had started export of gold jewellery in November, 2015 to Dubai. So, he used to visit for market survey, selling the gold jewellery and collecting the payment. He visited Dubai for survey and exploring the market on 4 to 5 occasions. In November 2015, he exported 2 kgs of gold jewellery through CHA - God Gift Cargo. His further visits 8-9 times after the export of jewellery was for selling and recovery of payment. (vii) With regard to the question that why he was required to visit Dubai to sell the jewellery and recover payment, when at the time of export itself this should have been negotiated, he answered tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold bar 695.5 gm. for ₹ 19,95,000/- vide Invoice No. 05 dated 12.04.2016 issued by M/s O. P. Jewellers Private Ltd, Chandni Chowk, Delhi. ii) Copy of documents being purchase orders for appellant's main business activity. iii) Copy of documents pertaining to export done by the appellant - of gold jewellery. 6. As it appeared to Revenue that the appellant was carrying gold jewellery by way of wearing on person as aforementioned, and further failed to provide details of licit possession of the seized gold jewellery, and it further appeared that the appellant was knowingly carrying gold jewellery with intention to evade customs duty and further the quantity appeared to be commercial, being carried for monetary gain and thus the jewellery appeared to be liable for confiscation. Accordingly, show cause notice dated 29.11.2016 was issued requiring to show cause as to why the silver coated gold jewellery weighing 547.5 gm, valued at ₹ 14,77,073/-, should not be absolutely confiscated under Section 111(d), (i) (j) (l) (m) of the Customs Act. Further, penalty was proposed on the appellant under Section 112 and 114 AA of the Act. 7. The appellant contested the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Tribunal to decide the appeal in respect of any order passed by the Commissioner (Appeals), which relates to any goods imported or exported as baggage. 12. The appellant opposing the contention of Revenue submits that first of all it is not a case of import or export of baggage, and secondly the appellant is neither an importer nor exporter, as he was a passenger in transit. Thus, there being no export or import under the facts and circumstances, there is no application of Baggage Rules under the Customs Act. Admittedly, the status of the appellant in the present case is a passenger in transit who had arrived from Bangkok around midnight on 05.06.2016 and was scheduled to take his next flight after a few hours on 06.06.2016 for Kathmandu, his ticket being from Bangkok to Kathmandu . The appellant had got down from the plane which had arrived from Bangkok only for the purpose of changing the flight and/or taking the flight for his destination, without entering India, and thus was not required to go through immigration or compliance with any customs formalities, as required by a passenger or person entering India. Admittedly, the appellant was intercepted by the Customs Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms and Others -1981 (8) ELT 298 (Cal.) Trilochan Singh vs. UoI -1981 (8) ELT 667; 16. In view of the position of law as clarified by the aforementioned judgements, I am satisfied that it is not a case of import into India from a place outside India as defined in Section 2 (23) of the Customs Act and thus there is no application of Baggage Rules under the Customs Act. Accordingly, the preliminary objection of Revenue is dismissed. 17. It is further urged by the appellant that the whole case of Revenue is misconceived and ab initio illegal. In absence of any allegation on the appellant trying to import the gold in question or in absence of any allegation that the appellant was caught while handing over the gold to any other person for being smuggled into India, etc. Admittedly, the appellant at the time of inspection was not found to be interlinked with any other person and upon interception was found to be a passenger in transit who was wearing the gold ornaments being chain and kada, totally weighing 550 gms. approx. 18. Admittedly, the appellant produced before the Court below the copy of purchase bill showing purchase of gold bar from M/s O. P. Jewellers, Delhi vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedures regarding declaration of baggage and dutiable goods arise only if a person wants to enter India at the Custom post or barrier. Thus, in the facts and circumstances the seizure and subsequent confiscation of the personal belongings of the appellant transit passenger, is ab initio void and misconceived. All the allegations by the Revenue are wholly unsubstantiated and ab initio void under the facts and circumstances. The cogent reason given by the appellant before the Court below have not been found untrue and rejected by non speaking and cryptic order. Accordingly, learned Counsel for the appellant prays for allowing the appeal with consequential benefits. 21. Learned Authorised Representative appearing for the Revenue relies on the impugned order and reiterated the allegations in the show cause notice which are as follows:- (a) The appellant, while travelling from Bangkok to Delhi to Nepal has attempted to smuggle the gold clandestinely as he was aware that he was carrying imported gold in commercial quantity, which attracts customs duty. (b) The appellant with an intention to evade customs duty has not declared the seized goods before the customs authorities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angkok to Kathmandu. The appellant was admittedly found in the transit lounge at IGI Airport, T-3, Delhi, meant for international passengers, where they can wait for the purpose of changing flight without entering into India, as such they are not required to go though any formality of immigration as well as under the provision of Customs Law. I also find that it is admitted fact that the appellant was waiting for his next flight in the transit lounge of Terminal No. 3 of IGI Airport, Delhi, and he was not intermixing with any other person or trying to deliver any goods or any packet or jewellery for the purpose of smuggling. I further find that the appellant have not violated any of the provisions under the Customs Act, 1962 read with the Foreign Trade Policy. I further find that the whole case of Revenue is misconceived and has no legs to stand. I also find that the source of gold jewellery he was wearing is cogently explained, which has not been found to be untrue. 23. In view of the facts and circumstances, I allow this appeal and set aside the impugned order. The penalty imposed is also set aside. 24. The concerned officers of the customs is directed to return the seized ..... X X X X Extracts X X X X X X X X Extracts X X X X
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