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TMI Blog2024 (1) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... the three of the appellants. The Department has also filed appeals against the decision of the adjudicating authority to permit Rakesh Luthra to redeem the gold, and the permission to re-export gold given to Sonia and Mamik Luthra. 2. The brief facts of the case are that Shri Rakesh Luthra along with Ms. Sonia Luthra, Shri Mamik Luthra and Ms. Sunita Luthra (hereinafter referred collectively as 'appellants') arrived on 08.06.2019 at T-3 IGI Airport, New Delhi by Air India Flight No. AI 335 from Bangkok and walked through Green Channel and they all were intercepted near the exit gate of Customs Arrival Hall. Shri Rakesh Luthra and Shri Mamik Luthra were carrying one hand bag only while Ms. Sonia Luthra and Ms. Sunita Luthra were carrying two hand bags each. All the said four persons were asked whether they were carrying any dutiable goods or gold to which they replied in the negative. They were diverted for scanning of their baggage through the X-Ray machine and nothing objectionable was noticed in their baggage. All the said four persons were made to pass through Door Frame Metal Detector installed in the arrival hall, wherein strong and long sound was heard when Shri Rakesh Luthr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 93,75,692/- Noticee-2 Ms. Sonia Luthra 1. 01 (one) cut piece of gold bar 995 993 28,76,086/- Sub-Total 993 28,76,086/- Noticee-3 Mamik Luthra 1. 01 (one cut piece of gold bar 999 1000 29,08,004/- Sub-Total 1000 29,08,004/- Grand Total 5218 1,5159,782/- 4. One bill for 1225.4 gms of gold in the name of Ms. Sunita Luthra was produced by Shri Rakesh Luthra (one of the appellants). The recovered gold was seized under different seizure memos under Section 110 of the Customs Act, 1962 on the reasonable belief that the same were liable to be confiscated under Section 111 of the Customs Act, 1962. The original adjudicating authority passed the impugned Order-in-Original No. 25-ADJ-2020 dated 16.02.2020 holding that Rakesh Luthra, Sunita Luthra, Sonia Luthra and Mamik Luthra were not eligible passengers to import gold. Hence the imported gold was confiscated but allowed redemption of the same on payment of fine, penalty and duty at baggage rate. The adjudicating authority also permitted re-export of gold in respect of two appellants, viz., Sonia Luthra and Mamik Luthra. The duty on gold said to be brought by them on their past visits was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gers walking through the Green Channel with dutiable/prohibited goods when apprehended are liable to prosecution/penalty and confiscation of goods.The learned Authorised Representative further stated that import of 'Gold' is permissible for the 'eligible' passenger subject to fulfilment of condition 41 of Notification No. 50/2017-Cus dated 30.06.2017, as amended vide Notification No. 25/2019-Cus dated 06.07.2019, that includes the conditionality of stay abroad (with permissible short visits). However, in the instant case, the appellants were frequent fliers and had visited India almost every month. Consequently, they did not satisfy the condition of being an 'eligible passenger'. As per the explanation to Notification No. 50/2017-Cus dated 30.06.2017: "Eligible passenger" means a passenger of Indian origin or a passenger holding a valid passport, issued under the Passports Act, 1967, 915 of 1967),who is coming to India after a period of not less than six months of stay abroad." 7.1 In the instant case, the customs officers intercepted the appellants while crossing the Green Channel and approaching towards the exit gate of arrival hall. The appellants did not report at the Red Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scovered only when they were made to pass through the metal detector. Consequently, the court seized from the appellant does not qualify as bonafide baggage. The learned Authorised Representative relied of the Madras High Court judgement in the case of Commissioner of Customs (AIR) Vs. Abdul Azeez [2020 (371) ELT 224 (Mad)] which held that there is no option or distraction with the Commissioner for redemption of gold. 8. We have heard the rival contentions and perused the appeal records. In order to appreciate the arguments, it is important to recount the facts of the case. The appellants, viz., Rakesh Luthra, Sonia Luthra, Sunita Luthra and Mamik Luthra arrived in India from Thailand. They were intercepted near the exit gate of the customs baggage hall, having chosen to walk through the green channel. Personal search of these passengers resulted in recovery of 5218 gms of cut gold pieces valued at Rs. 1,5159,782/-. It is pertinent to note here that the allegations are that appellants did not opt for red channel to declare the gold nor did they file any declaration as required under the Notification. In order to appreciate the arguments of the learned counsel, and the learned Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that Gold was dutiable. Consequently, the argument that there is no of concealment or attempt to smuggle cannot be accepted. As regards the argument of the appellants that Gold is not a prohibited item, we note that the High Court of Gujarat in the case Bhargavraj Rameshkumar Mehta Vs. Union of India [2018 (361) E.L.T. 260 (Guj.)] held that attempt to smuggle by concealing the same, and breaching the condition for the import of such goods would make them 'prohibited goods' in terms of Section 2(33) of the Customs Act, 1962. The relevant paras of the aforesaid decision is reproduced hereinbelow: "15. We may recall, the contention of the Counsel for the petitioner in this respect was that the gold at the relevant time was freely importable. Import of gold was not prohibited. Case of the petitioner would therefore, fall under clause (ii) of Section 112 and penalty not exceeding 10% of the duty sought to be evaded would be the maximum penalty imposable. Such contention shall have to be examined in the light of the statutory provisions noted above. As noted, Section 111 of the Act provides for various eventualities in which the goods brought from a place outside India would be liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dutiable goods other than prohibited goods, it shall necessarily have the reference to the goods, import of which is not prohibited or of which import is permissible subject to fulfilment of conditions and such conditions have been complied with. Condition of declaration of dutiable goods, their assessment and payment of customs duties and other charges is a fundamental and essential condition for import of dutiable goods within the country. Attempt to smuggle the goods would breach all these conditions. When clearly the goods are sought to be brought within the territory of India concealed in some other goods which may be carrying no duty or lesser duty, there is clear breach of conditions of import of goods though per se import of goods may not be prohibited." 8.2 Further, in the case at hand, the facts are the appellants were carrying gold in their person and were intercepted near the exit gate of the Customs Baggage Hall, which clearly establishes their intention to smuggle the Gold. In this regard, we note that the Supreme Court in the case of Om Prakash Bhatia Vs. Commissioner of Customs, Delhi reported in [2003 (155) E.L.T. 423 (S.C.)] and in case of Sheikh Mohd. Omer Vs. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1965.4 gms in the past. The learned counsel has argued that the Department has not led any corroborative evidence and the demand is based merely on the statement of Ms Sunita Luthra. We are unable to accept this contention. A perusal of the statements of the appellants including the extracted portions above clearly establishes a modus operandi adopted by the appellants for smuggling gold. This is further corroborated in the statement dated 08.06.2019 of Ms Sonia Luthra. In addition, the appellant Mamik Luthra has also admitted in response to question no. 6 that he had been to Dubai along with his mother but he did not bring back gold. However, his mother had brought gold weighing 500 gms. We note that each of the appellant in their individual statements recorded under section 108 of the Customs Act, 1962 have admitted to smuggling of gold during their earlier visit to Dubai. We take recourse to the observation of the Supreme Court in Naresh J. Shukawani Vs. Union of India [1996 (83) ELT 258 (SC)] that the statement made before Customs officials is not a statement recorded under section 161 one of the Criminal Procedure Code, 1973 and therefore, it is a period piece of evidence col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants attempted to smuggle the gold with an intention to evade Customs Duty by not declaring the non-bonafide baggage which was commercial in nature. It is also established that the appellantswere 'ineligible passengers' to import gold in terms of Notification No. 50/2017- Cus dated 30.06.2017 and also provisions of Foreign Trade (Development and Regulation) Act 1992, Foreign Trade (exemption from application of rules in certain cases) Rules, 1993 and Foreign Trade Policy 2015-20. We also note that Section 80 of Customs Act, 1962 provides for 'temporary detention of baggage', which is applicable in respect of only those goods for which a true declaration has been made under Section 77. Under Section 80, the proper officer may, at the request of the passenger, detain such article for the purpose of being returned to him on his leaving India. In the instant case, though the appellants had not declared the gold and the fact remains that the passengers were intercepted by the officers of customs at the exit gate. This clearly establishes the intent was to walk away with the gold without payment of duty that was lawfully due to the Government. This is also corroborated by their statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jeweller in Dubai. The bars were examined by an expert and were held to be foreign origin gold of 995 purity. All these gave the officers reasonable belief that the gold bars were of foreign origin. Since import of gold is restricted, if foreign origin gold bars were legally imported it was incumbent upon the importer and any other person to whom they may have been sold to show documents that the gold was legally imported. This responsibility is cast upon the appellant as per Section 123. The gold was seized and after its assessment, statements of the appellant were recorded in which he explained that he procured the gold from one Shri Harish of Dubai who told him that Shri Ahadees would contact him and give him the gold bars and accordingly, he was waiting at Rajeev Chowk Metro Station whether transaction took place. He had, at no point of time, produced any document to show that the gold was legally imported. According to his statement, the arrangement which he had with Shri Harish was that he would send gold through one of his persons (Shri Ahadees in this case) and after selling the gold he would pay Shri Harish. At the time of receiving the gold he would pay only some amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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