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TMI Blog2023 (5) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... e identity of the imported gold jewellery with the exported jewellery also extends to the 25299.68 grams gold jewellery forming subject matter of the present review petition. By operation of Notification 45/2017-Cus, therefore, the plaintiff would, prima facie, be entitled to duty free clearance of the imported jewellery. The only ground on which we had extended differential treatment to the 25299.68 grams gold jewellery, from the remaining gold seized in the warehouse/godown of the review petitioner and at the Airport, was that the B/E relating to the 25299.68 grams gold jewellery was unsigned by the customs authorities. We are convinced, prima facie, apply to the said gold jewellery in the first place. Moreover, the Show Cause Notice issued to the review petitioner, too, acknowledges that the jewellery was imported as baggage. In these circumstances, we are of the considered opinion that the review petitioner is justified in its prayer that the 25299.68 grams gold jewellery be extended the same treatment as has been extended to the remaining gold. The judgment under review worked out the quantum of the bank guarantee to be furnished at ₹ 10 crores, as 30% of the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent appealed to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) (hereinafter the learned Tribunal ). Returning a positive finding of fact that the gold imported had been verified and found to tally with the gold earlier exported, the learned Tribunal, vide Final Order dated 13th November 2019, directed provisional release of the gold, on terms fixed by it. CUSAA 229/2019, in which the present Review Petition has come to be filed, was preferred by the DRI against the said Final Order of the learned Tribunal, under Section 130(1) 2 of the Customs Act. 5. By our judgment dated 1st June 2020 under review we disposed of CUSAA 229/2019. We upheld the decision of the learned Tribunal directing release of the gold seized from the factory/warehouse of the respondent as well as 25400.06 grams gold jewellery covered by Bill of Entry (B/E) No. 107190 dated 26th February 2019, but enhanced the conditions of release to furnishing of a bond covering the entire value of the gold along with an irrevocable Bank Guarantee (B/G) for ₹ 10 crores. However, we set aside the direction of the learned Tribunal permitting release of the consignment of 25299.68 grams gold jewe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized at the Airport, thus, stands concluded, with the Supreme Court upholding our judgment subject to enhancement of the quantum of B/G to be furnished from ₹ 10 crores to ₹ 15 crores. 8. Qua the third consignment, viz. 25299.68 grams gold jewellery also seized at the Airport, the respondent has filed the present Review Petition, seeking review of our decision to set aside the judgment of the learned Tribunal, which had permitted provisional release of the said consignment as well. 9. We proceed, by this order, to dispose of the Review Petition. 10. We have heard, at various points of time, Mr S.K. Bagaria, learned Senior Counsel and Mr. Madhav Khurana, learned Counsel for the respondent-Review Petitioner, and Mr Zoheb Hussain, learned SCGSC, for the appellant-DRI. 11. Written submissions have also been filed by both sides. 12. The main contention of the respondent-Review Petitioner is that the quantity of 25299.68 grams gold jewellery was imported as baggage and that the requirement of filing of a B/E, which emanates from Section 46(1) 3 of the Customs Act, in Chapter VII thereof, does not apply to baggage, in view of Section 44 4 . Baggage , it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apropos Notification 45/2017-Cus, para 19 of the reply states that the Notification permits duty free import of gold jewellery only if the Assistant Commissioner (AC)/Deputy Commissioner (DC) is satisfied that the gold jewellery being reimported is the same as that which had been exported earlier, and that no such satisfaction had been recorded by the AC or the DC. 17. Insofar as the reference to the import of the gold jewellery by Mr Amrit Pal Singh as baggage, in the Show Cause Notice, is concerned, the reply by the appellant-DRI merely states that the word baggage was used, in the Show Cause Notice, in normative terms . 18. Besides reiterating its stand, the review petitioner, in its rejoinder, has contended that the DRI is, in its response to the review petition, trying to set up a new case, contrary to the case already set up against it. The review petitioner has further relied on Standard Operating Procedure (SOP) dated 29th March 2016, which specifically deals with appraisement of hand carried jewellery for exhibition under export promotion schemes. Clause 2(xii) of the said Standing Order reads thus: (xii) On return, the exporter shall approach the Customs R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing dutiable or prohibited goods . It is asserted that Amit Pal Singh, on arrival, proceeded to the Red Channel and followed the procedure envisaged in SOP dated 29th March 2016 supra. In any event, submits the review petitioner, these factors pale into insignificance, given the fact that the jewellery which was imported by Amrit Pal Singh was found to the same as that exported by him earlier. Analysis 20. Though several arguments were advanced at the Bar, especially by the DRI, regarding intricate provisions of the Foreign Trade Policy and other statutory mandates, we are of the opinion that any venture, by us, into those areas are outside the scope of the present review proceedings, as well as of Section 130 of the Customs Act. 21. These review proceedings arise out of a judgment in an appeal filed by the DRI under Section 130 of the Customs Act. As has been pointed out by us even in the judgment under review, the scope of examination, in a statutory appeal under Section 130, is limited to substantial questions of law. Findings of fact cannot be interfered with, under Section 130, unless they suffer from manifest perversity. 22. The scope of the present review proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission for taking goods for exhibition, export declaration form of the appellant, Customs endorsed colour photographs of jewellery, the bill of entries for re-import along with packing list covering details of jewellery items of import along with the photocopies of the jewellery. We find that authenticity of the goods being re-imported being sae as had been exported by two shipping bills as mentioned above, has not been doubted by the Department. We find that the Department has not adduced any evidence to contradict the fact that the same jewellery has been imported by the appellant which had been exported for exhibition purpose. At this juncture, we are only examining whether the import of the subject seized gold jewellery was in violation of any of the provision of Customs Act, 1962 and Import-Export Policy of 2015-2020 or whether it was a legitimate reimport of exported goods. We find that the Assessing Officer after scrutiny of all the relevant documents and on satisfaction has allowed the clearance of re-imported gold jewellery and had endorsed that the imported gold jewellery was same which had been exported under the two shipping bills (as mentioned in preceding paras). We f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, the learned Tribunal has decided to provisionally release the goods in issue, and has fixed the terms of provisional release, this Court would, in appellate jurisdiction under Section 130 of the Act, interfere only where the exercise of discretion, by the learned Tribunal, is found to be perverse, in that it is contrary to the facts before the learned Tribunal, amounts to a perverse appreciation thereof, or is such as no reasonable person would have arrived at. Absent these infirmities, we are convinced, in our mind, that no case for interference, with the decision of the learned Tribunal could be said to have been made out, even if we, on the facts, may be of the opinion that the learned Tribunal could have decided otherwise. These, in our view, are principles which are too well settled to merit repetition. 62. Viewed thus, how does the present case pan out? ***** 69. Insofar as the first category, of 25400.06 grams of gold jewellery, is concerned, the learned Tribunal has, in para 26 of the impugned Final Order, observed that the Assessing Officer after scrutiny of all the relevant documents and on satisfaction has allowed the clearance of the impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lery ought, or ought not, to have been provisionally released, was entirely discretionary. The facts before the learned Tribunal, which are also before us, cannot be said to be such as would render the exercise of discretion, by the learned Tribunal, in favour of provisional release of the 25400.06 grams of gold jewellery, perverse. Absent such perversity, no case, in our view, can be said to exist, as would justify our interference, with the exercise of discretion by the learned Tribunal, in exercise of our jurisdiction under Section 130 of the Act. 73. We may hasten to add, here, that our view, in this regard, does not discountenance, in any manner, the allegation, of the DRI, that the entire quantity of 51172.4 grams of gold jewellery was, in fact, being smuggled into India, or that it was, consequently, liable to confiscation. That is a matter to be decided in adjudication. Provisional release of the gold jewellery does not, in any manner, inhibit the adjudicating authority from holding that the jewellery was, in fact, liable to confiscation, or passing appropriate orders in that regard. It is precisely for this reason that, at the time of provisional release, the importer i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 25.4 of the show cause notice dated 26th September 2019, which read thus: 2. On the basis of above specific information, DRI officers started keeping surveillance and the said person was identified by the DRI officers and intercepted near the Customs exit gates alongwith two bags i.e. one black colour backpack and one black colour stroller bag being carried by him. After interception Sh. Amit Pal Singh, alongwith the baggage being carried by him was escorted by the DRI officers in the Customs Preventive Room situated at the Arrival Hall of Terminal-3, IGI Airport New Delhi, for conducting further enquiry under the provisions of the Customs Act 1962. The DRI officers introduced two independent witnesses to Sh. Amit Pal Singh who remained present during the entire proceedings and to witness any recovery. Thereafter, on being enquired by the DRI officers in presence of the independent witnesses, Sh. Amit Pal Singh informed that he is working as Supervisor in the firm, M/s Its My Name Private limited, C-1,2,3, 10th Floor, PP Tower, Netaji Subhash Palace Pitampura, New Delhi. The DRI officers further asked Sh. Amit Pal Singh to explain the contents kept in baggage i.e. two blac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry having gross weight 33805.770 grams, having remarks 'For Exhibition Purpose'. Further, on the body of the xerox copy of Export Declaration Form No. G19000021397 and photocopy of Shipping Bill for Export of Duty Free goods Export Promotion Copy [attached with the said xerox copy of Invoice), it has been mentioned at 'Gold - unsold - 25400.060 grams US01075107.13 having signature with stamp of Sh. Vikram Bhasin, Jewellery Appraiser Customs, IGI Airport New Delhi. (iv) Print-out of photos of jewellery (said to contain 51 Pages) containing signature of Auth. Sign./Director For Its My Name Pvt. Ltd. on first and last page and containing signature of Sh. Neeraj Aneja, Jewellery Appraiser (Customs), Air Cargo Complex (Exports), IGI Airport, New Delhi, on first and last page. (v) Packing list of return goods ITS/EXH/2018-19/28 dated 24.04.2019 said to contain description and weight of gold jewellery (return goods) having gross weight 25400.060 grams total value USD 1075107.13. On the body of the above said list the signature of Authorised Signatory/Director, For Its My Name Pvt. Ltd. and signature of the Jewellery Appraiser with stamp of Vikram Bhasin, Jewellery Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Packing List: 25.4 Import of gold as baggage by a passenger of Indian origin or a passenger holding a valid Passport issued under the Passport Act, 1967 is being allowed since Notification No. 117/92-Cus. dated 01.03.1992 as amended/superseded and issued under Section 25(I) of the Act ibid came into force from 01.03.1992, whereby the eligible passengers are being permitted to import gold, in any form, up to a permissible quantity, on payment of appropriate Customs duty in convertible foreign exchange. The above provisions under the Baggage Rules are also in consistence with the provisions under Rule 3(1)(h) of the Foreign Trade (Exemption from Application of rules in certain cases) Order. 1993 issued under Section 3 read with Section 4 of the Foreign Trade (Development and Regulation) Act, 1992 and in suppression of the Import (Control) Order, 1955. It also further appears that in terms of Notification 12/2012-Cus. Dated 17.03.2012 as amended, an eligible passenger is entitled to import gold bars subject to the conditions mentioned therein. 28. Mr. Zoheb Hossain has sought to wish away the reference, in these passages from the show cause notice issued to the review p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e imported by the respondent-review petitioner was, in fact, the same jewellery which had earlier been exported for exhibition abroad. 33. There is no categorical traversal, of these findings, in the appeal preferred by the DRI, as has already been observed by us in the judgment under review. Even otherwise, absent perversity, these findings cannot be re-examined in an appeal under Section 130 of the Customs Act, which is restricted to substantial questions of law. 34. The only ground on which we had extended differential treatment to the 25299.68 grams gold jewellery, from the remaining gold seized in the warehouse/godown of the review petitioner and at the Airport, was that the B/E relating to the 25299.68 grams gold jewellery was unsigned by the customs authorities. We are convinced, prima facie, apply to the said gold jewellery in the first place. Moreover, the Show Cause Notice issued to the review petitioner, too, acknowledges that the jewellery was imported as baggage. In these circumstances, we are of the considered opinion that the review petitioner is justified in its prayer that the 25299.68 grams gold jewellery be extended the same treatment as has been extended t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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