1994 (5) TMI 73

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....or getting married and was on a re-visit. At this time he had brought with him two kgs. of gold as baggage in view of liberalisation announced by the Government.  3. However, he handed over this gold and the amount of duty payable to his co-passenger who had accordingly deposited the same.  4. Learned Collector, has however, confiscated the gold and imposed a penalty on a technical ground that his present visit was within six months of the earlier one.  5. It was his submission that the Collector has referred only to Customs Notification No. 117/92 and not taken into account the Notification No. FERA 111/92 referred to in the Show Cause Notice. This notification grants general permission to import gold upto 5 kgs bot....

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...., we have also to look at the Customs Notification No. 117/92, dated 1-3-1992 issued under Section 25 CA 62 and the Import Trade Control Order No. 83/90-93, dated 29-2-1992 issued under Section 3 of Import Trade (Control) Act, 1947.  8. It was also his contention that in any case Notification No. FERA/111/92 must prevail over RBI Circular No. 15 of March 13, 1992 which is only in the nature of an executive clarification. He emphasised that Notification No. FERA/111/92 read with aforesaid Customs Notification and Import Trade Control Order makes it clear that passengers of Indian origin or holders of Indian Passport could import gold within permissible limit without licence, subject to payment of duty in foreign currency only if they....

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...., dated 30-3-1992 cannot be ignored and has to be simultaneously kept in view.  12. A perusal of the above provisions show that first and foremost a passenger has been allowed to import gold as baggage subject to the limitations and conditions provided in the above notifications and Section 77 CA, 1962 casts the duty of making a declaration on the owner of the baggage in the following words "77. Declaration by owner of baggage - The owner of any baggage shall, for the purpose of clearing it, make a declaration of its contents to the proper officer." Therefore, in as much as the appellant did not make a declaration himself, there was violation of Section 77 CA, 1962.  13. In so far as the question of the conditions of the not....

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....he case of a person resident outside India he has not pursuant to the permission grant herein, brought gold within the preceding six months. This notification covers persons of Indian nationality as well as Indian origin and puts the condition of six months time gap in the case of Indian visiting abroad as well as NRI as evident from the repetition of the clause/words "persons resident outside India" in the proviso as well.  16. In other words, this provision is in harmony with the Customs and the ITC Notifications. A problem is, however, created by RBI Circular No. 15, dated 13-3-1992 which mentions that while in the case of non-resident the general permission is available once in six months, in the case of others the general permi....

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....in the peculiar circumstances of this case, gold was rendered liable to confiscation and the appellant was rendered liable to penalty and if so was the appellant required to be visited with such severe punishment as has been inflicted by the Collector.  19. In this respect violation of Section 77 CA, 1962 cannot be taken lightly as, correct and proper declaration in accordance with this relevant sections was one of the basic premises of the Customs Act. The fact that duty had been paid by a co-passenger does not in any way affect the position that there was violation of Section 77 CA, 1962 and it could at best be pleaded as a mitigating factor.  20. At the same time, it is to be kept in view that from the admitted facts, it ....