9911796707
TMI Blog2025 (1) TMI 1465X X X X Extracts X X X X X X X X Extracts X X X X ..... owner of such gold to redeem in lieu of confiscation under Section 125 of the Customs Act, 1962. Therefore, the Order rejecting the request for redemption or reexport cannot be sustained - Considering the fact that the goods are not absolutely confiscable, the Court is of the view that the Impugned Order dated 25.10.2021 passed by the 4th respondent, holding the goods are not redeemable and is not liable to be confiscated is to be interfered with.
Conclusion - The goods not declared under customs regulations are liable for confiscation, but absolute confiscation is not mandatory if the goods are not inherently prohibited. The impugned order affirming the absolute confiscation of the gold set aside. The case remitted to the Joint Commissioner of Customs to impose a redemption fine under Section 125 of the Customs Act.
Petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... moorthy i. He owns a gold pawn shop and was the secretary of the Jewellers' Association. ii. He had paid Rs. 2,000 pm for 5 years. iii. Was handed over Rs. 2,50,000/- plus he carried Rs. 45,000/- iv. When he came to Malaysia after spending three days in Singapore, he was given two gold bracelets and one gold chain to be handed over outside Chennai Airport. v. Would be given 22 Carat gold of same weight i. Jewellery of 24 Carat was bought by each co-passenger as 22 Carat was costlier and the Jewellers told they could carry gold up to the value of Rs. 5,00,000/- and customs duty thereon would be meagre. ii. He did not meet Shri Ranganathan in Singapore or Malaysia and hence could not inform about the purchase. iii. The jewellery was bought using the money handed over by him to each passenger and through selling of some of the jewellery worn by them. 3. P.S.Ranganathan - Organizer of the trip (To the best of Respondent's knowledge, there is no writ petition pending) i. He is the President of the TN Jewellery Merchants Association at Panruti, and his son owned a gold jewellery shop namely S.R.Jewellery in Panruti. He is also a partner along with his son-in-law in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, only bona fide household goods and personal effects may be imported as part of passengers baggage as per limits, terms and conditions thereof in the Baggage Rules, 1998. c) As per Section 3(3) of the Foreign Trade (Development & Regulation) Act, 1992, all goods to which sub-section (2) applies shall be deemed to be goods, the import or export of which has been prohibited under Section 11 of the Customs Act, 1962 and Foreign Trade (Regulation) Rules, 1993 and the same applies to goods not constituting the bona fide baggage of any passenger. Therefore, non-bona fide passenger baggage needs to be treated as Prohibited goods under Section 11 of the Customs Act, 1962. d) As per Section 77 of the Customs Act, 1962 the owner of any baggage shall, for the purpose of clearing it, make a true declaration of its contents to the proper officer. e) As per Section 79 only bona fide baggage is exempted from duty subject to certain conditions. f) As per Section 111(d), any goods which are imported contrary to any prohibition imposed by or under this Act or any other law for the time being in force shall be liable to confiscation. g) As per Section 111 (1) any dutiable or prohibited go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold brought by them did not belong to them. 10. The Original Authority by Order-in-Original No.281 dated 25.04.2014 in F.NO.OS/55/2013 - INT (AIR) passed the following Order:- 25. Therefore, taking into account the facts and circumstances of this case, I proceed to pass the following order:- i. I order for absolute confiscation of the above said seized crude gold of 24K purity, as per Table-1 under Section 111 (d) and (l) of the Customs Act, 1962 read with Foreign Trade (Development and Regulation) Act, 1992; ii. I order for confiscation of the above said seized 13 Samsung LED Televisions, as per Table-2 under Section 111(1) of the Customs Act, 1962 read with Foreign Trade (Development and Regulation) Act, 1992. However, I allow for redemption of the 13 Samsung LED Television(s) on payment of a redemption find of 25% (Twenty Five percentage) of the value of the Television(s), as per Table-2, brought by the individual passengers and on payment of the applicable baggage duty upon extending the permissible baggage allowance. iii. I order for Personal Penalty of Rs. 2,50,000/- (Rupees Two Lakhs and Fifty Thousand Only) on Shri P.S.Ranganathan Rs. 50,000/- (Rupees Fifty Thousa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and with a narrow-minded aim of evading customs duty by trying to smuggle currency out of the Country and bring in gold. These no doubts invite stringent punishment in the form of a steep penalty. 16. Considering the above findings and relying on the above case laws, I find no infirmity in the Order of the Respondent in confiscating absolutely of the Impugned goods. I also find that the penalty of Rs. 50,000/- imposed under Section 112(a) of the CA, 1962 and Rs. 30,000/- imposed under Section 114(i) of the CA, 1962, are both fair and commensurate with the offence committed. Hence the Impugned Order passed by the Respondent is just and well-reasoned, needs no intervention. 17. As the gold have been absolutely confiscated and the same has been upheld the request for re-export cannot be considered at this juncture. 18. Appeal rejected." 12. On further revision before the 4th Respondent herein under Section 129DD of the Customs Act, 1962, in Order No.269- 281/2021/CUS(SZ)ASRA/Mumbai in F.No.373/112-124/B/15-RA/6316, the Order of the Lower Authority and the Lower Appellate Authority has been confirmed. Relevant portion of the said Order reads as under:- "13. There is no doubt t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the petitioners has placed reliance on the following decisions of the Hon'ble Supreme Court, Andhra Pradesh High Court, Bombay High Court, Calcutta High Court, Punjab and Haryana High Court and that of this Court :- i. Hargovind Das K.Joshi vs. Collector of Customs, 1992 (61) E.L.T. 172 (S.C.); ii. Neyveli Lignite Corporation Limited vs. Union of India, 2009 (242) E.L.T. 487 (Mad.); iii. Shaik Jamal Basha vs. Government of India, 1997 (91) E.L.T. 277 (A.P.); iv. T.Elavarasan vs. Commissioner of Customs (Airport), Chennai, 2011 (266) E.L.T. 167 (Mad.); v. Palaniappan vs. Principal Commissioner of Customs, Chennai - 1, 2016 (339) E.L.T. 367 (Mad.); vi. Union of India vs. Dhanak M.Ramji, 2009 (248) E.L.T. 127 (Bom.); vii. Sapna Sanjeev Kohli vs. Commissioner of Customs, Mumbai, 2009 (240) E.L.T. 207 (Bom.); viii. Shabir Ahmed Abdul Rehman vs. Union of India, 2009 (235) E.L.T. 402 (Bom.); ix. Commissioner of Customs vs. Atul Automations Private Limited, 2019 (365) E.L.T. 465 (S.C.); x. Commissioner of Customs (Preventive) West Bengal vs. India Sales International, 2009 (241) E.L.T. 182 (Cal.); xi. Horizon Ferro Alloys Pvt. Ltd. vs. Union of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -INT (AIR) dated 25.04.2014 passed by the 2nd respondent Original Adjudicating Authority. I have also perused the provisions of the Customs Act, 1962, Notification No.12/2012-Customs dated 17.03.2012 as amended from time to time and as it stood during the period in dispute. I have also perused the provisions of the Baggage Rules, 1998. 23. The Impugned Order dated 25.10.2021 passed by the 4th respondent under Section 129DD of the Customs Act, 1962 has proceeded on assumption that the petitioners were not entitled to the benefit of Sl.No.321 to Exemption under Notification No.12/2012-Customs dated 17.03.2012. 24. Sl.No.321 to Exemption under the above notification relates to goods falling under Chapter/Heading No.71 or 98 of the 1st Schedule to the Customs Tariff Act, 1971 (51 of 1975). The description of the goods in Sl.No.321 to Notification No.12/2012-Customs dated 17.03.2012 is as follows:- i. Gold bars, other than tola bars, bearing manufacturer's or refiner's engraved serial number and weight expressed in metric units, and gold coins having gold content not below 99.5%, imported by the eligible passenger. ii. Gold in any form other than, i. including tola bars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1962, if applicable which deals with special provisions regarding "Baggage, Goods and Imported or Exported Goods by Post, Courier, and/or Stores". 30. As per Section 77 of the Customs Act, 1962, the owner of any "baggage" shall, for the purpose of clearing it, make a declaration of its contents to the proper officer. 31. The expression "baggage" has been defined in Section 2(3) of the Customs Act, 1962, as follows:- "baggage" includes unaccompanied baggage but does not include motor vehicles." 32. The gold ornaments worn in person are not "baggage" within the definition in Section 2(3) of the Customs Act, 1962. 33. As far as the "jewellery" is concerned, as per the Rule 6 of the Baggage Rules, 1998, a passenger returning to India is allowed clearance free of duty jewellery in his bona fide baggage to the extent mentioned in column (2) of Appendix D. Appendix D relates to Indian Passenger who has been residing abroad for over one year. It reads as under:- "Column (2) i. Jewellery upto an aggregate value of Rs. 10,000/- by a gentleman passenger, or ii. Upto an aggregate value of Rs. 20,000/- by a lady passenger." 34. As far as passengers returning from countries other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t about gold ornaments which were worn by them in person before the customs authorities at the airport. 39. In this case, all the petitioners have attempted to "smuggle" the gold by wearing them in their persons which they could not be imported duty free either under the above mentioned notification or under the Baggage Rules, 1998. 40. At the same time, one should not lose sight of the fact that gold is no longer prohibited after the Gold (Control) Act, 1968 was repealed in the year 1990 i.e., with effect from 6th June 1990. 41. The import of gold is not prohibited. Rather, it is restricted and regulated. Therefore, any person carrying gold ornament ought to have paid appropriate customs duty if whether such gold jewellery/ornament was worn in person or kept in the "baggage". 42. Absolute confiscation of the imported quantity of gold in the hands of each of these petitioners cannot be ordered to be absolutely confiscated under Section 125 of the Customs Act, 1962. 43. The option ought to have been given to the owner of such gold to redeem in lieu of confiscation under Section 125 of the Customs Act, 1962. Therefore, the Order rejecting the request for redemption or reexport c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
