Government grants plea for absolute gold confiscation, modifying Order-in-Appeal. Revision application allowed, gold to be confiscated.

The Government upheld the Department's plea for absolute confiscation of the gold, modifying the Order-in-Appeal to this extent. The revision application was allowed, and the impugned gold was ordered to be absolutely confiscated.

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Issues Involved:
1. Legality of the re-export of confiscated gold.
2. Eligibility of the passenger to import gold.
3. Determination of whether the gold is considered "prohibited goods."
4. Validity of the passenger's claim of ownership of the gold.
5. Admissibility of the passenger's statement under Section 108 of the Customs Act.
6. Applicability of Section 80 of the Customs Act for re-export of goods.
7. Correctness of the Show Cause Notice issued under Section 124 of the Customs Act.

Detailed Analysis:

1. Legality of the Re-export of Confiscated Gold:
The Department contended that the appellate authority's decision to allow the re-export of the gold on payment of a redemption fine is incorrect. The appellate authority reduced the redemption fine from Rs. 12,50,000/- to Rs. 6,00,000/- and allowed re-export, which the Department argued makes smuggling an attractive proposition. The Government upheld the Department's plea for absolute confiscation, stating that the passenger's conduct of not declaring the gold and attempting to smuggle it warranted absolute confiscation.

2. Eligibility of the Passenger to Import Gold:
The passenger did not fulfill the conditions stipulated under Notification No. 12/2012-Cus dated 17/03/2012 and Rule 6 of the Baggage Rules, 1998. The passenger was not eligible to import the gold as he did not declare it and was not in possession of foreign currency for the payment of duty. The Government held that the passenger was ineligible to import the gold, thus supporting the Department's contention.

3. Determination of Whether the Gold is Considered "Prohibited Goods":
The Government examined whether the gold is "prohibited goods" under Section 2(33) of the Customs Act, 1962. Citing the Supreme Court's rulings in Om Prakash Bhatia vs. Commissioner of Customs and Samynathan Murugesan vs. Commissioner, the Government concluded that the gold, being undeclared and imported without fulfilling the eligibility criteria, is considered prohibited goods and is liable for confiscation under Section 111(d) and (i) of the Customs Act.

4. Validity of the Passenger's Claim of Ownership of the Gold:
The passenger initially admitted that only 300 grams of the gold belonged to him and the rest belonged to his roommates. Later, he retracted this statement, claiming ownership of the entire gold. The Government found this retraction to be an afterthought, noting that the initial statement was a voluntary admission and binding. The Government rejected the passenger's claim of ownership and upheld the Department's view that the passenger acted as a carrier for the gold.

5. Admissibility of the Passenger's Statement Under Section 108 of the Customs Act:
The Government emphasized that statements made before Customs officers under Section 108 of the Customs Act are admissible evidence. The Supreme Court has upheld this in various cases, including Surjeet Singh Chhabera vs. Union of India and Naresh J. Sukhawani vs. Union of India. The Government found the passenger's initial statement valid and binding, dismissing the subsequent retraction as an afterthought.

6. Applicability of Section 80 of the Customs Act for Re-export of Goods:
Section 80 of the Customs Act allows re-export of bona fide baggage declared to Customs. Since the passenger did not declare the gold, the Government held that he was not eligible for re-export under this section. The Government cited similar cases, such as Hemal K Shah and CC Kolkata vs. Grand Prime Ltd, to support its decision.

7. Correctness of the Show Cause Notice Issued Under Section 124 of the Customs Act:
The respondent argued that the Show Cause Notice for confiscation should be issued under Section 124 of the Customs Act. The Government clarified that the notice clearly mentioned Section 124, along with Sections 111(d) and (i), and thus found no merit in the respondent's plea.

Conclusion:
The Government allowed the Department's plea for absolute confiscation of the gold, modifying the Order-in-Appeal to this extent. The revision application was thus allowed, and the impugned gold was ordered to be absolutely confiscated.

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