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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 ..... e to import the gold legally. It is also on record that the appellants were intercepted near the exit gate. The argument that they were prevented from making the declaration is clearly an afterthought. The gold was recovered from their person. It is also noted that the appellants, in their respective statements have accepted that there were aware of the Customs procedures for passenger clearance, and that Gold was dutiable. Consequently, the argument that there is no of concealment or attempt to smuggle cannot be accepted. The High Court of Gujarat in the case BHARGAVRAJ RAMESHKUMAR MEHTA VERSUS UNION OF INDIA AND 1 [ 2018 (3) TMI 284 - GUJARAT HIGH COURT ] 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. 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 - Failure to check the goods on the arrival at the customs station and payment of duty at the rate prescribed, wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Luthra, Ms. Sonia Luthra and Shri Mamik Luthra walked through the metal detector. No sound was heard when Ms. Sunita Luthra passed through. Thereafter, personal search of Shri Rakesh Luthra and others was conducted in the Customs Preventive Room in the presence of two witnesses. The searches resulted in the recovery of the items from the appellants as indicated hereinafter. 2.1 Personal search of Shri Rakesh Luthra resulted in: (1) 03 (three) pieces of yellow metal bars weighing 1000 gms each and one piece of Yellow metal weighing 225 gms appearing to be gold, total weighing 3225 gms. (2) Boarding pass of Air India Flight No. AI 335 dated 07.06.2019. (3) One used I phone XS phone having Vodafone SIM No. 9814465658. (4) Indian Passport No. SO377792 issued on 07.03.2018 at Chandigarh. (5) Indian currency Rs. 12,500/- and Thai Bhatt 1120, USD 1000. 2.2 Personal search of Ms. Sonia Luthra resulted in: (1) 01 (one) cut piece of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 also confirmed. 5. The learned counsel for the appellant submitted that the said demand of customs duty under Section 28 of Customs Act, 1962 is based on the extracted statement of the appellant. It is settled law that unless the statement is corroborated by any other evidence, the same cannot be admitted as evidence. He contended that there is nothing in the impugned order or the show cause notice dated 19/20.11.2019 to show that the appellant Sunita Luthra had herself brought 2000 gms. of gold apart from 1965.4 gms. allegedly brought by her husband Rakesh Luthra. The statement has been mis-interpreted by the Commissioner to hold the appellant had herself brought gold in the past. 6. The learned counsel further contended that there is nothing in the impugned order or the show cause notice dated 19/20.11.2019 to show that any investigations to corroborate the veracity of the statements of the appellants with regard to the allegation of past clearances of gold without payment of duty was done by the Department. Consequently, the admission of past cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and approaching towards the exit gate of arrival hall. The appellants did not report at the Red Channel for declaration for dutiable/prohibited goods which were in the possession of the appellants. Had the appellants not been intercepted near the exit gate by the customs officers, the appellants would have exited from Customs Area, i.e. from arrival hall without making any declaration oral or otherwise. Therefore, appellant s submission holds no merit. 7.2. As regards the appellant s contention that they were not evading customs duty, the learned Authorised Representative contended that on the basis of suspicion, the appellants bags were scanned. Thereafter, the appellants were subjected to personal search which is a normal procedure adopted by customs officers in all such cases. He submitted that it is a matter on record that the seized gold was recovered from the appellant s pocket after they passed through the metal detector door frame. Had they not been diverted for personal search, they would have exited the customs area without payment of duty and successfully smuggled the gold. 7.3. The learned Authorised Representative also submitted that based on the statements, summons d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication. In order to appreciate the arguments of the learned counsel, and the learned Authorised Representative, it is pertinent to reproduce the condition no 41 of the aforesaid notification, which reads as under; 41. If,- 1.(a) the duty is paid in convertible foreign currency; (b) the quantity of import does not exceed one kilograms of gold and ten kilograms of silver per eligible passenger; and 2. the gold or silver is,- (a) carried by the eligible passenger at the time of his arrival in India, or (b) the total quantity of gold under items (i) and (ii) of Sr. No. 356 does not exceed one kilogram and the quantity of silver under Sr. No. 357 does not exceed ten kilograms per eligible passenger; and (c) is taken delivery of from a customs bonded warehouse of the State Bank of India or the Minerals and Metals Trading Corporation Ltd., subject to the conditions 1 ; Provided that such eligible passenger files a declaration in the prescribed form before the proper officer of customs at the time of his arrival in India declaring his intention to take delivery of the gold or silver from such a customs bonded warehouse and pays the duty leviable thereon before his clearance from customs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the goods brought from a place outside India would be liable for confiscation. As per clause (d) ofSection 111, goods which are imported or attempted to be imported or are brought within the Customs quarters for import contrary to any prohibition imposed by or under the Act or any other law for the time being in force, would be liable for confiscation. Similarly, for dutiable or prohibited goods found concealed in any manner in any conveyance would also be liable to confiscation. As per Section 2(39) the term smuggling would mean in relation to any goods, any act or omission which will render such goods liable to confiscation under Section 111 or Section 113. Thus, clearly Section 111 of the Customs Act prohibits any attempt at concealment of goods and bringing the same within the territory of India without declaration and payment of prescribed duty. Term prohibited goods as defined under Section 2(33) means any goods, the import or export of which is subject to any prohibition under the Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 423 (S.C.)] and in case of Sheikh Mohd. Omer Vs. Collector of Customs, Calcutta and others reported in [1983 (13) E.L.T. 1439 (S.C.)] held that smuggling in relation to any goods is forbidden and totally prohibited. Failure to check the goods on the arrival at the customs station and payment of duty at the rate prescribed, would fall under the second limb of Section 112(a) of the Act, which states omission to do any act, which act or omission, would render such goods liable forconfiscation under Section 111 of the Act, and clause (b) to Section 111 of the Act covers the persons involved. 9. We now address the issue of the duty demanded on past such smuggling of gold by the appellants, which is based on the statement of one of the appellants, Ms Sunita Luthra. It is noted that Ms Sunita Luthra in her statement dated 08.06 2019 stated that she along with Sonia Luthra, Mamik Luthra and her husband Rakesh Luthra collectively brought 5218 gms of gold from Bangkok to Delhi via flight AI335. She also confessed that she had previously also visited Dubai with husband on 15.3.19, 03.04.19, and 01.05.19 and had brought gold totally about 2000 gms. Similar statement was made by Rakesh Luthra i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a period piece of evidence collected by Customs officials under Section 108 of the Customs Act. It was further stated by the court that if such a statement increased incriminates the accused, inculpating him the contravention of the provisions of the Customs Act, it can be considered as substantive evidence to connect the accused with the contravention of the provisions of this Act. Para 4 of the said judgement is reproduced: 4. It must be remembered that the statement made before Customs officials is not a statement recorded under section 161 of the criminal procedure code, 1973. Therefore it is a material piece of evidence collected by the Customs officials under section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of provisions of the Customs Act. Material can certainly be used to connect the petitioner the contravention inasmuch as Mr Dudani s statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India . It is also seen that once there is an admission by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements that similar modus operandi was adopted when they had returned from Dubai. In this regard, the decision of the High Court of Gujarat in the case Bhargavraj Rameshkumar Mehta Vs. Union of India (supra) 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. Once it is established that the goods are prohibited, then there cannot be an option for either redemption or re-export, and such goods are liable for absolute confiscation. In this context, we note that the Tribunal in the case of Sunny Kakkar Vs. Principal Commissioner of Customs (Preventive), New Delhi [2023 (385) E.L.T. 258 (Tri.-Del)] upheld the absolute confiscation of Gold. The relevant paras of this decision is reproduced hereinafter: 32. As per Section 2(39) smuggling , in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113. Therefore, if the gold bars in dispute are held liable for confiscation under section 111 they will fall under the category of smuggled gold as per Section 2(39). Another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson handing over the gold. In this case, the amount which he paid in a pink polythene bag was Rs.5,45,000/- to Shri Ahadees. These statements were corroborated by the statement of Shri Ahadees. Neither Shri Ahadees nor the appellant have at any point of time produced any document to show that the gold was legally imported by them or that it was purchased by them from somebody who had legally imported it. 34 . Learned counsel for the appellant submitted that on 8-12-2015 the appellant had retracted his statement and, therefore, it cannot be relied upon. We have gone through the statements made before the learned CMM by the appellant in his application for bail which is at page 109 to 112 of the appeal book. The application only states that the statement was not made by the appellant. However, there is nothing in the statement made before the learned CMM explaining the nature of the gold seized from the appellant. In the absence of any other explanation, the statements made by the appellant and Shri Ahadees before the officer must be accepted as correct. These statements corroborate each other and with the panchnama. The cross-examination of Shri Ahadees by the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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