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TMI Blog2001 (7) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... Intelligence unit suspected the appellant's carrying with him illicit of goods in his baggage and therefore, before he crossed the green channel, he was taken into custody and complete search was done of his baggage. It was found that he was carrying 'Eminent' suit case, brown colour plastic bag which did not result in the recovery of any gold or any other contraband. However, during the course of examination of greenish black colour zip bag, among used personal clothing one FIFU emergency light, one foot air pump and two 'sather' shaving cream tube, they were found to unusually heavy. Therefore, the same was checked in the presence of two independent witnesses and the passenger and the 'FIFU' emergency light was first opened which resulted in the recovery of 11 nos. of ten tolas gold bars with foreign markings and 4 nos. of yellow metal rods which were found wrapped with black colour adhesive. Likewise, the foot air pump was also examined closely which resulted in the recovery of 10 nos. of ten tolas gold bars with foreign markings which were found wrapped with black colour adhesive tapes and kept concealed inside the metal cylinder of air pump. Thereafter, the shaving cream tubes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detailed examination of his baggage, 11 Nos. of ten tola gold bars with foreign markings and 4 Nos. of gold rods which were kept concealed in 'FIFU'. Emergency lamp, 10 Nos. of ten tolas gold bars with foreign markings kept concealed in the Foot. Air Pump and 3 Nos. of gold bars with foreign markings and 5 Nos. of gold bits kept concealed in the shaving cream tubes, by wrapping the gold with black adhesive tapes in the above said item (viz. Emergency Lamp, Foot air pump and Shaving cream tubes) were recovered. Since the passenger did not declare the gold to the Customs at any stage and the same were kept concealed in the Emergency lamp, Foot air pump and in the shaving cream tube the same were seized under a Mahazer for taking necessary action under Customs law read with Section 3(3) of Foreign Trade (Development Regulation) Act, 1992. 19. I find that in his voluntary statement dated 3-4-1996, Shri Shaik Shahabuddin admitted that he kept concealed the said gold, wrapping with the black adhesive tapes, in the Emergency lamp, Foot Air pump and in the shaving cream tubes to evade from customs duty and he knew that it was an offence; that he purchased the said gold with his own mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evident that Shri Shaik Shahabuddin had attempted to smuggle in the contraband gold totally weighing 3331 gms. totally valued at Rs. 17,10,176/- M.V. (Rupees Seventeen Lakhs Ten Thousand One Hundred and Seventy Six only) (Rs. 15,26,130/- I.V.) by not declaring the same to the customs by concealment in his baggage. The goods are thus liable for confiscation. 23. The Hon'ble Supreme Court in the case of Shaik Mohamed Omar v. Collector of Customs, Calcutta - AIR 1971 Supreme Court 293 while dealing with the word 'prohibition' under Sec. 111(d) read with Sec. 3 of the Imports Exports (Control) Act, 1947 has held that any prohibition referred to in the section comprised every type of prohibition. That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression any "prohibition in Sec. 111(d) of the Customs Act include restrictions................................................................any prohibition means every prohibition." Finally the Hon'ble Supreme Court has concluded that certain exceptions are provided for in the case referred to above but nonetheless the prohibition continues. 24. In the light of the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot binding. 5. The alternate argument taken by the Counsel is that gold is now removed from the negative list and can be imported in terms of Notification No. 171/94-Cus, dated 30-9-1994. He submits that the Tribunal has been consistently taking the view that even in extreme circumstances of attempting to smuggle foreign branded gold biscuits, the authorities are required to release the gold biscuit on payment of redemption fine as held in V.P. Hameed v. CC, Bombay reported in 1994 (73) E.L.T. 425 (T). He also refers to the judgment of Kamlesh Kumar v. CC reported in 1993 (67) E.L.T. 1000 (G.O.I.) and that of S.S. Khosla, Jt. Secretary In re: Jaspal Singh Banty reported in 1994 (73) E.L.T. 240 (G.O.I.). He also refers to the Apex Court judgment rendered in the case of Hargovind Das K. Joshi Others v. CC Others reported in 1992 (61) E.L.T. 172 (S.C.) = AIR 1987 S.C. 1982 which has held that it was just, fair and proper that the authority addressed himself to the question of giving option which had been submitted before them and as the Apex Court found that the order of confiscation was not in terms of law and therefore remanded the case for de novo consideration. He also files ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of fine and nominal penalty. Therefore, he submits that impugned order is not correct and legal in law and requires to be set aside. 7. On the other hand ld. DR Shri Jayachandran defends the order and submits that there is no infirmity in the impugned order. He points out to the manner in which the appellant had hidden the gold in various items clearly indicated his intention to smuggle the gold bars without declaration. In his voluntarily statement, he confessed that he did not declare the items and was crossing the green channel without declaration. Therefore, this circumstance and admission cannot be set aside and subsequent resilement of his statement is nothing but an after-thought. The fact that he has admitted that he was not declaring the item is required to be taken as correct. Therefore, the seizure of gold and order of absolute confiscation is in keeping with the law. The gold biscuits carried foreign markings and appellant clearly admitted that he did not have any permission or licence from RBI and hence the Commissioner rightly had confiscated. Therefore, even in terms of the judgment cited by the Counsel gold was confiscable but only the power was given to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven his finding as to whether such resilement was an after-thought or not. We notice that Tribunal has already taken a view in the case of Mohit Thakore's case (supra) that in view of relaxation made in the RBI's circular and other circulars of FERA, absolute confiscation is not valid and the option of redemption is required to be given. Such a view has also been expressed by the West Regional Bench rendered in the case of V.P. Hameed v. Collector (supra) and in view of the judgment rendered by Sh. S.S. Khosla Jt. Secretary, G.O.I. in Kamlesh Kumar v. CC - 1993 (67) E.L.T. 1000 (G.O.I.) and in respect of Jaspal Singh Batty, 1994 (73) E.L.T. 240 (G.O.I.). We also note that in the case of Shankar Kumar Karikar v. CC, Madras (supra) the option to redeem was also accepted and such direction was given. 9. However, we are not agreeable to the arguments of ld. Counsel that Tribunal should take up the plea of fixing of redemption fine. It is for the original authority to reconsider all the pleas and also to see as to whether the present case falls within the ambit of grant of release by fixing the redemption fine in the light of judgments cited. The authorities also have to clearly give ..... X X X X Extracts X X X X X X X X Extracts X X X X
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