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TMI Blog2022 (4) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... e department has not been able to establish the connection between the appellant and Shri Vasu Arumugam. For these reasons, there are no doubt to hold that the view taken by the adjudicating authority that the goods are liable for confiscation are legal and proper and does not merit interference. The appellant has to be given an option to redeem the gold jewellery and currency and the Sony Bravia TV which was imported been carried by him. The appellant, however, has to pay redemption fine to the tune of 10% of the value of the goods as noted in the impugned order as redemption fine for release of the gold jewellery, currency and Sony Bravia TV. Penalty imposed upon the appellant - HELD THAT:- There was no attempt to conceal the gold jewellery by the appellant. However, he has proceeded through the green channel and about to exit the airport without paying the customs duty. A penalty of ₹ 55 lakhs under section 112(a) of the Customs Act, 1962 seems to be on the higher side and we hold that penalty of ₹ 10 lakhs would suffice to the circumstances. The penalty imposed upon shri Vasu Arumugam is reduced from ₹ 10 lakhs to ₹ 5 lakhs. The impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Sony Bravia 40V LCD television. On the personal search of the passenger, he was found to carry a photocopy of three lists showing the total weight and quantity of the gold jewellery carried by him and also currency notes for 5,380 US Dollars and 230 Singapore Dollars. He did not have any bill for purchase of gold jewellery and stated that he was carrying the same for a monetary consideration for Vasu Arumugam @ Manoj. He stated that the said co-passenger of the appellant who is an Indian and knew him as Manoj would clear his checked in baggage and bring it out of the airport. The appellant showed the Indian passport of the said Manoj and handed over the same to the officers. The name in the passport was Shri Vasu Arumugam. 3. Under mahazar proceedings dated 17/18.2.2009, the gold jewellery totally weighing 9994.38 grams, USD 5,380, Singapore Dollars 230, Sony Bravia LCD TV valued at ₹ 1,60,22,391/- were seized. The airline e-ticket of the appellant, counterfoil of the checked in baggage, boarding pass, customs declaration form, the three lists showing the weights and quantities of the gold and the photocopy of the three lists found on the person of the passenger were al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elopment and Regulation) Act, 1992. Such foreign goods brought as non-bonafide passenger baggage without declaration of the same are liable to confiscation under sec. 11 of the Customs Act, 1962 and the person concerned therewith is liable to penal action under sec. 112 and punishment under sec. 135 of the Customs Act, 1962 rad with Section 11(1) of Foreign Trade (Development and Regulation) Act, 1992. 6. Based on the above investigation, Show Cause Notice was issued to the appellant and also Shri Vasu Arumugam by DRI under sec. 124 of the Customs Act, 1962. The appellant replied to the Show Cause Notice on 19.9.2009. Shri Vasu Arumugam did not reply to the Show Cause Notice nor did he appear for personal hearing. 7. After due process of law, the adjudicating authority vide order impugned herein passed the following order:- (i) I order for confiscation of the assorted gold jewellery totally weighing 9994.38 grams and valued at ₹ 1,55,95,610/- (Indian Market value), ₹ 1,42,84,146/- (International Value) under section 111(d), (l) and (m) of the Customs Act, 1962 read with Section 3 of Foreign Trade (Development and Regulation) Act, 1992. (ii) I order for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notification of the Government of India in the erstwhile Ministry of Finance (Department of Revenue) No. 171/94-Customs, dated the 30th September, 1994, published in the Gazette of India, vide number G.S.R. 733 (E), dated the 30th September, 1994, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts goods of the description specified in column (2) of the Table below and falling under Chapter 71 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India by an eligible passenger, from so much of the duty of customs leviable thereon which is specified in the said First Schedule, as is in excess of the amount calculated at the rate as specified in the corresponding entry in column (3) of the said Table and from the whole of the additional duty leviable thereon under section 3 of the said Customs Tariff Act. Table S. No. Description of goods Rate (1) (2) (3) 1. Gold bars, other than tola bars, bearing manufacturer s or refiner s engraved serial number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecluded him from the queue and forcibly took him to a separate room and confined him there for several hours. The officers did not accept the explanation given by him and they proceeded to record incriminatory statements from the appellant using threat, coercion and force. The statements recorded under such vitiated circumstances was retracted by him at the earliest point of time when he was remanded to judicial custody. In such retracted statements, he explained the actual facts. He never had any intention not to declare the gold jewellery or not to pay the customs duty. 12. The appellant is a Singapore citizen of Indian origin. The learned counsel submitted that the provisions of Foreign Exchange Management (Export and Import of Currency) Regulations, 2000 entitles a passenger to hold USD 10,000 without any intimation / declaration to the customs authorities and the same is eligible for every passenger who comes to India. The foreign currencies carried by the appellant is only for the purpose of payment of customs duty for the gold jewellery carried by him. The learned counsel asserted that the appellant did not make any effort to conceal the gold jewellery and foreign currenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there are no dutiable goods to be declared. To the query put by the DRI officers as to whether he had any dutiable goods or other items, he had answered in the negative. From this, it is very much clear that the appellant has attempted to smuggle the gold into India. Further, from his statement recorded on 18.2.2009, it has come out that he has carried the gold jewellery for another person namely Manoj @ Vasu Arumugam. The said person Vasu Arumugam did not respond to summons issued to him. This itself speaks that the appellant was carrying the gold on behalf of Vasu Arumugam. If the customs officers had not intercepted, the appellant would have smuggled the gold jewellery and the foreign currencies without payment of customs duty. The appellant would have made exit from the airport without paying the customs duty. The retracted statements are only afterthought and cannot be given any credence. If the appellant had any grievance that his statement was taken under coercion, threat or force, he should have complained about the same to appropriate authorities. There has been no such complaint and merely because there is a retraction, the evidence in the nature of the original sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has attempted to smuggle the gold without declaring cannot be accepted. Though it may be true that the declaration has not been made part of the relied upon documents, it has to be seen that the appellant was intercepted at the exit gate. Had he any intention to pay the customs duty he ought to have proceeded to the Red Channel. Instead, he had proceeded through the green channel and was about to exit the airport. Further, there is some discrepancy as to why he has stated that another person named Manoj @ Vasu Arumugam has asked him to carry the Sony Bravia TV for him. Shri Vasu Arumugam was exparte during the investigation proceedings and has filed the appeal thereafter. There is no statement from Vasu Arumugam and the department has not been able to establish the connection between the appellant and Shri Vasu Arumugam. For these reasons, we have no doubt to hold that the view taken by the adjudicating authority that the goods are liable for confiscation are legal and proper and does not merit interference. 21. However, from the facts narrated above, it is brought out that the appellant falls into the criteria of an eligible passenger. He is thus allowed to import gol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 111 of the Customs Act, 1962 on account of concealment. Section 125 requires that whenever confiscation of any goods is authorised by the Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under the Act or under any other law for the time being in force, and shall in the case of any other goods, give to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit. Rule 9 of the Baggage Rules, 1978 framed under Section 79(2) of the Customs Act, 1962 lists Gold in any form other than ornaments in Appendix B of the Rules as articles which shall not be imported free of duty. Hence gold in the form other than ornaments is entitled to be imported on payment of duty. Attempt to import gold un-authorisedly will thus come under the second part of Section 125 (1) of the Act where the adjudging officer is under mandatory duty to give option to the person found guilty to pay (fine) in lieu of confiscation. Section 125 of the Act leaves option to the officer to grant the benefit or not so far as goods whose import is prohibited but no such option is available in respect of good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been held that when necessary documents have been produced and the petitioner is an eligible passenger, an option to redeem the gold ought to be given. Absolute confiscation should be an exception rather than a rule. 25. From the discussions made above, we are of the considered opinion that the appellant has to be given an option to redeem the gold jewellery and currency and the Sony Bravia TV which was imported been carried by him. The appellant, however, has to pay redemption fine to the tune of 10% of the value of the goods as noted in the impugned order as redemption fine for release of the gold jewellery, currency and Sony Bravia TV. 26. The next issue that comes up for consideration is the penalty imposed upon the appellant. As already discussion above, there was no attempt to conceal the gold jewellery by the appellant. However, he has proceeded through the green channel and about to exit the airport without paying the customs duty. A penalty of ₹ 55 lakhs under section 112(a) of the Customs Act, 1962 seems to be on the higher side and we hold that penalty of ₹ 10 lakhs would suffice to the circumstances. The penalty imposed upon shri Vasu Arumugam is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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