TaxTMI 
TaxTMI 
2010 (10) TMI 650
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.... Laly (hereinafter referred to as five persons). In their statements recorded on 19-10-92, Shri Illiyas Patel, Smt. Mamuda Illiyas Patel and Smt. Munira M. Laly stated that the gold carried by Shri Yakub was not belonging to them and they were not carrying any foreign currency for payment of Customs duty. They had also made written declaration before the Customs declaring that they were carrying goods valued at Rs. 2500/-, Rs. 2,300/- and Rs. 2000/- respectively and other two passengers viz. Smt. Memuda I. Patel and Smt. Munira M. Laly had also declared gold ornaments and obtained respective TBREs. 2.1 The appellant in his statement deposed that earlier he had made 6 visits from 5-4-92 to 19-10-92 and during Oct/92 this was his third visit .He also deposed that he had brought gold from abroad and in the present case he brought the gold to India to earn profit and that the profit was not to be shared with Shri Illiyas Patel or Smt. Laly and their family and he was to remove the gold from Mumbai Airport for further disposal and sale in the Mumbai market. The department carried out further investigation in the matter and show-cause notice was issued for confiscation of the gold and c....
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....partment again filed a Notice of Motion before the Hon'ble High Court. The Hon'ble High Court did not grant any relief on the Notice of Motion, however, permitted certain amendments as prayed by the Department's Counsel. The Department carried out the said amendment and WP No. 1802/2002 was filed by the Department in the Hon'ble High Court. The Hon'ble High Court vide its Order dated 27-11-2001 set aside the Order of the Tribunal impugned in WP No. 1802/2002 as also refund order-cum-demand notice dated 6th March impugned in WP No. 1443/2002 and directed the Tribunal to de novo hear and adjudicate upon the issues arising out of the aforesaid Order. 3. The contention of the appellant is that he was merely carrying the said gold and foreign currency for and on behalf of his relatives of NRI and there was every intention to pay the requisite amount of Customs duty by the NRI. The appellant submitted that the declaration contemplated under Sec. 77 of the Customs Act, 1962 need not be always written declaration and in case the entitled passenger is moved with permissible gold, then it is not an offence. The appellant further submitted that the adjudicating authority has failed to a....
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....iscation of brief case and foreign currency equivalent to Rs. 6,54,830/- under Section 118(a) and 119 of the Customs Act, 1962 and imposed a penalty of Rs. 50.00 lakhs on the appellant and exonerated Shri Illiyas Patel, Smt. Memuda I. Patel, Smt. Munira M. Daly and her two minor sons, Master Sonil M. Laly and Master Faiyaz M. Laly. However, all of them preferred appeals before the Tribunal against the Order of the Commissioner dated 6-5-1996. 5.2 The Tribunal vide its Order dated 8-11-2000 upheld the confiscation of the gold, however, permitted it to be redeemed for re-export on payment of fine of Rs. 10.00 lakhs. Penalty on the appellant was reduced from Rs. 50.00 lakhs to Rs. 5.00 lakhs and the confiscation of foreign currency brought by the appellant was also set aside. The appeals filed by the five persons were dismissed. They did not challenge the Tribunal's Order, nor did the Department challenge this aspect in their WP No. 1802/2002. Therefore, so far as the appeals filed by the five persons are concerned, the same reached finality. 5.3 The Department did not challenge the impugned Orders of the Commissioner and the Tribunal so far as the confiscation of gold is ....
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....ted the formalities at the immigration counters, he was confronted by the officers of the Directorate of Revenue Intelligence (DRI for short). It is contended that the evidence of the two of the officers of the DRI during cross examination supports this view in the proceedings before the Commissioner. These officers are Patil and A. V. Radekar, Intelligence officers of the DRI. Patil says that he was keeping a watch on Yakub Yusuf on the day in question. He was Yakub Yusuf being intercepted by Shirodkar, Senior Intelligence Officer of the DRI. Yakub Yusuf told Shirodkar that he was carrying 25 kilograms of gold, which belongs to some other people, pointing to a group of people standing in the baggage hall. Radekar says that Shirodkar identified Yakub Yusuf who was in the arrival hall after coming through immigration. 6. Radekar's statement is of no value in the proceedings. It does not support the view that Yakub Yusuf did not have sufficient opportunity to declare the gold. What Patil says certainly does lend support to the claim that Yakub Yusuf had indicated he was carrying the gold, that the gold did not belong to him although it does not support the claim of ownership of....
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....such a retraction would be that the admission made in the statement if they are such would require corroboration. It is in fact the gold they admit. A person who makes a statement according to which he has not brought any dutiable goods is not making a statement damaging himself. We are not really concerned with the possible claims of ownership of gold between Yakub Yusuf and on others. What we are concerned with is whether the gold belongs to Yakub Yusuf or to others. The claims made in the retractions are completely belied by the conducts of these persons in the Customs which was discussed in some details above. 10. There are however contradictions at the subsequent stages. Replying to the show cause notice proposing confiscation of the gold, and imposition of penalty. These five persons had taken the stand that the gold does not belong to them. At the same time, a letter written by Mr. Dave, their common advocate to the Commissioner take a different stand that the gold was claimed by them. The Commissioner finds that Mr. Dave did not have vakalatnamas signed by the three out of five persons who are majors. In the light of this finding that the Commissioner records, with re....
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.... From the above, it emanates that the gold is liable for confiscation, the gold is not belonging to the five persons and the gold belonged to the appellant, however, the benefit of the Notification No. 117/92-Cus. as amended, is not available to the appellant since he has already availed the said benefit. 5.5 The Department has contended that since the gold is prohibited item, it cannot be redeemed on payment of fine and since the appellant is not owner of the gold, it cannot be redeemed to him and therefore, the order of absolute confiscation of gold under Section 125 of CA, 1962 by the ld. Commissioner is sustainable. Section 125 of the Customs Act, 1962 is reproduced below for proper appreciation : "S. 125. Option to pay fine in lieu of confiscation. - (1) Whenever confiscation of goods is authorized by this Act, the office adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall in the case of any other goods, give to the owner of the goods for, where such owner is not known, the person from whose possession or custody such goods have been seized, an optio....
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....erefore, the redemption of confiscated gold, on an option to pay fine in lieu of confiscation is not against the provisions of Section 125 of the Customs Act. 5.6 The Department has also contended that the appellant has never claimed the ownership of the gold. Therefore gold cannot be redeemed to the appellant. In support they have placed reliance on Hon'ble Bombay High Court's decision in the case of Mohammed Aijaj Ahmed (supra). In that case the owner of gold was known still the redemption was allowed to the carrier. In the instant case the five persons are not the owner of the gold as already discussed (supra). The Department's entire case is based on the statement of the appellant wherein he has deposed that he had brought the gold to earn profit and the profit is not to be shared with five persons. Therefore the above-cited case is not applicable to the facts of the case. The department has also placed reliance on Tribunal's Order No. 1980 to 1995/09 (supra) which in turn relied upon above-cited decision of Hon'ble Bombay High Court, hence the decision is not applicable to the case. The issue in the High Court of Madras in the case of Bansal Industries (supra) related to....