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TMI Blog1994 (1) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequently, however, on 10-10-1992 (though applicant talks of retraction on 2-7-1992 itself and quoted cross examination of Shri Kantha who stated that certain enquiries were conducted by superiors) he retracted his earlier statement and claimed that he had opened the suitcase at the customs counter and had showed the customs officer the 42 gold biscuits and 4000 US $ and 32 Baharin Dinars and that the customs officer seized 42 gold biscuits, as the customs were interested in making it a seizure case. 3.The original authority, however, rejected the applicant's plea holding that if the applicant had showed the biscuits to the officers he should have insisted on payment of duty specially when he had also brought the money for payment of duty. The said authority, while absolutely confiscating the impugned goods, also imposed a penalty of Rs. 50,000/-. The applicant's appeal too was rejected. 4.Shri A.V. Murlidharan, Advocate for the applicant appeared for a personal hearing on 22-12-1993 and averred that the applicant on arrival had made a correct declaration and a false case was made out by the Customs with the motive of getting reward; that the fact that applicant wanted to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to enrich the exchequer at the cost of poor passengers by absolutely confiscating the goods of poor people. Otherwise there was no need to frame such a legislation; that, therefore, it was incumbent upon the lower authorities to have exercised their discretionary power vested by the Parliament in a judicious manner, as otherwise, the Government policy of liberal import of gold would be defeated if absolute confiscation was resorted to for mere technical offences of non-declaration (assuming it to so) particularly as in view of liberalisation, gold was like any other commodity which can be imported subject to fulfilment of certain conditions which the applicant herein clearly satisfied; that since the benefit of redemption under Section 125 ibid was being given in a routine manner for other commodities as well denial of the same to the applicant would be unconstitutional particularly as the same Appellate Authority had in the past permitted even gold to be redeemed on redemption fine. 9.Finally, the learned advocate, pleaded for release of impugned goods and relied on Government's own decision in the case of Shri Kamlesh Kumar v. Collector of Customs - 1993 (67) E.L.T. 1000 (GOI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ange. Prior to the liberalisation of import of gold no import whatsoever was allowed to any private individuals and not even to NRIs. But now import of gold upto 5 kgs, is allowed subject to conditions of stay abroad, quantity restrictions and payment of duty in foreign exchange at nominal rate of Rs. 220/- per 10 grams. It is also clarified in the liberalised policy that gold brought in can be freely sold in the open market, and is not for actual use by importers himself. No permission or license from any Govt. agency or Reserve Bank of India is required now for entitled persons to bring in gold. The relaxation is very liberal for such persons. 14.The prohibition in relation to NRIs and other qualified persons is thus negligible and of a slender nature as compared to the absolute prohibition before the liberalisation of gold was announced when there was blanket prohibition. Keeping this in view it would be harsh to absolutely confiscate gold in respect of such entitled persons without consideration of circumstances of a case and the nature of condition that is violated. The earlier rigour of prohibition, however, continues for non-entitled people and it will certainly be fair to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector of Customs, Ahmedabad - 1987 (29) E.L.T. 991 (Tribunal)]. These factors are relevant for determination of quantum of fine. 19.Thus in short the case is basically to evade duty to the extent of 1.10 lacs as the applicant otherwise seems to be qualified for bringing in this gold in question. Absolute confiscation of gold valued at Rs. 19.57 lacs (market value) for the only offence of evading duty of Rs. 1.10 lacs in the circumstances of the case would seem to be excessively harsh. Hence, Government is inclined to allow redemption under Section 125 ibid as the applicant seems otherwise entiled to bring in the gold in question. Furthermore the condition of payment of duty in foreign exchange is not something that cannot be made good from the applicant. 20.Since the applicant brought almost 5 kgs. of gold it seems he wanted to make full use of entitlement hence higher fine than in case of smaller quantities is warranted in this case. The gold is accordingly allowed to be released (subject to the applicant being otherwise found entitled to bring in gold by the Asstt. Collector) on a redemption fine of Rs. 4.00 lacs (Rs. Four lacks only) plus duty to be paid on foreign exchang ..... X X X X Extracts X X X X X X X X Extracts X X X X
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