TaxTMI 
TaxTMI 
2016 (5) TMI 1114
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....o checked-in baggage, after filling up the value of the goods carried by him as Nil in his Customs disembarkation card. The said passenger was asked specific as to whether he was carrying any gold/contraband goods either in his baggage or on his person to which he replied in negative. Upon noticing that the passenger became nervous, a detailed examination of his two checked-in baggages and one hand bag was conducted, in the presence of two witnessed, bus nothing incriminating was found. thereafter, a notice under section 102 of the Customs Act, 1962 was served upon him for the personal search. Before the personal search was taken he was explained and made to understand the provisions of the said Section. He agreed for the personal search to be conducted in presence of gazetted officer and witnesses. During the personal search nine bits of yellow coloured metal from his pants pocket was recovered which totally weighed 1000 grams and was suspected to be gold. The Government approved gold appraiser was called upon to examine the recovered gold in the presence of witnesses and the said passenger and on examine the yellow metal bits, he certified them as made of gold of 24 carat purity,....
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....1962 and as to why the penalty under Section 112 (a) & (b) of the act ibid not be imposed on him. 2.3 after due process of law the case adjudicated by the adjudicating authority by passing Order-in-Original no 218/2014 dt. 27/03/2014, ordering the following-: (i) The impugned gold totally weighing 1000 grams valued at Rs. 25,72,280/- (International price of gold) was confiscated under Section 111 (d) & (I) of the Customs Act, 1962 with an option to redeem the same for re-export on payment of fine of Rs. 12,50,000/- under Section 125 of the Act, ibid or if option to redeem for the home consumption to be opted on payment of duty @ 36.05 % in addition of the Redemption Fine. (ii) Imposed apenalty of Rs. 2,50,000/-(Two lakhs fifty thousand only) on Shri Moinuddin under Section 112 (a) & (b) of the Customs Act, 1962 3. Being aggrieved by the said Order-in-Original, both shri Moinuddin and the Department filed Appeal before the commissioner of Customs, Chennai (Appeals-I) who decided the appeal vide common Order-in-Appeal no 349-350/2015 dated 20/06/2015. commissioner of Customs (Appeals-I) modified the impugned Order-in Original by reducing redemption fine to Rs.....
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.... notification states that the passenger of Indian origin or a passenger holding a valid Indian Passport issued under the Passport Act, 1967 who is coming to India after a period of stay not less than six months of stay abroad and short visits, if any, made by this eligible passenger during the above said periods of sid months shall be ignored if the total duration of stay on such visit does not exceed thirty days can bring gold up to 1 kg and the duty has to be paid @ 10% on the value of the gold and the duty has to be paid in foreign currency. 4.2.2 That rule 6 of baggage rules, 1998 states that a passenger who stayed abroad for more than one year can bring gold jewellery (22 carat) to an extent of Rs. 1 lakh (female passenger) and to an extent of Rs. 50,000/- (male passenger) and the same can be cleared from customs without payment of duty. 4.2.3 That in the present case, the passenger did not declare the gold possessed by him under Section 77 of the Customs Act, 1962 and was not in possessed by him under Section 77 of the Customs Act, 1962 and was not in possession of foreign currency for the payment of duty and that the passenger has not fulfilled the conditions stipul....
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.... for monetary consideration and hence the gold cannot be redeemed 2. UOI Vs Mohd Aijaj Ahmed Absolute confiscation of gold was a carrier and the gold did not belong to him The passenger is a carrier, who smuggled gold and he admitted in his statement in his statement that the seized gold belong to his roommates. 3. Faisal Khan Vs Joint Commissioner The statement recorded under Section 108 of CA, of 1962 is admissible. The passenger retracted his admission and informed that he is the owner of the gold seized during the personal hearing. The retraction is not acceptable as the statement was recorded under Section 108 of CA 1962 on5.3.2014. whereas he retracted the statement belatedly only at the time of PH held on 21/01.2015 after the gap of 10 months in the case of P.B Nair C & F Pvt. Ltd Vs. CC. Mumbai reported in 2015 (318) ELT 437(Tri Mum),CESTAT has held that retraction of statement under section 108 is a judicial proceeding and belated retractions of statements after about one and half years cannot take away the evidentiary value of original statement. 4.6 That the appellate authority has contended that the case laws relied by the department are disti....
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....rity vide para 7(ii) (c) has contended that the facts on the above case are totally different. That in the present case, the passenger in his voluntary statement has admitted that the only 300 grams of gold belongs to him and the balances belong to his roommates. That at the time of personal hearing he retracts his statement and claims ownership of the entire gold seized. that retraction made by him is an afterthought and to show that the statement recorded under Section 108 of the Act, admissible. 4.8 That in a recent judgement delivered by Hon'ble High court of Delhi in the case of Ramkumar Vs Commissioner of customs decided on 16.01.2015 in Review petition No. 429 of 2014 in WP No. (C) No. 4536 of 2013, reported in 2015 (320) ELT 368 (Del) it was held that benefit of Section 125 of Customs Act, 1962 is not entitled as the applicant was mere carrier of goods and the same did not belong to him. 4.9 That re export of goods is covered in section 80 of the Customs Act, 1962 that as per the said act, where the baggage of the passenger contains any article which is dutiable or the import of which is prohibited and in respect which a true declaration has been made under the Sectio....
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....e relevant case records and perused the impugned Order-in-Original Order-in-Appeal and order of the Hon'ble High Court dated 31.08/.2015. 8. On perusals of the records, Government observes that is is an undisputed fact that respondent imported impugned gold bits weighing 1000 grams and attempted to walk through green channel to smuggle it out by way of concealment, by keeping it inside his pant pocket and did not declare the same to the Customs under Section 77 of the Act, ibid as required. The gold was recovered only upon the personal search of the respondent. In the statement of the respondent recorded under Section 108 of the respondent. In the statement of the respondent recorded under Section 108 of the Customs act, 19632, he inter-alia admitted that he was working in private firm in Kuwait for the past 7 years; that only 300 grams of gold bits belonged to him and rest of the quantity belonged to his four friends who were his roommates at Kuwait; that he carried the gold bits by keeping them in his pant pocket without declaring the same to Customs to evade Customs duty; that he knew that he was not an eligible passenger to import gold at the concessional rate of duty and he....
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....7.03.2012 as amended a Rule 6 of the Baggage Rules. Therefore, it is paraded that the passenger was not eligible to import the gold and accordingly the impugned Order-in Appeal allowing redeeming of the goods on re-export is unlawful and has the effect of making smuggling an attractive proposition and be set aside. 10. government observes that it is an uncontested fact that the goods were not declared to the customs under section 77 of the Act and the passenger passed though the green channel. Even upon being questioned if he had anything to declare, he answered in the negative including before his personal search was conducted. However, upon his person search 1000 grams of gold bits were recovered of which he claimed only 300 grams. Belonged to him and rest he was carrying on behalf of others for a monetary consideration which he later claimed also belonged to him as the actual owners owed money to him. It is also uncontested that the passenger had also not fulfilled the conditions of notification no 12/2012-CUS dated 17.03.2012 and nor was he entitled to import the impugned gold under Rule 6 of the Baggage Rules (which allows import of 22 carat personal gold jewellery up to Rs....
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....d as an eligible passenger, he ought to have approached the Customs and made the requisite declaration. Therefore, government upholds the Department's contention that absolute confiscation is legally warranted keeping in view that facts and circumstances of the case. 13. Another issue of contention in this regard is whether passenger is a carrier of the impugned goods or not. Based on his admission statement, the Department has contended that the passenger is nothing but a carrier. The commissioner (Appeals) on the other hand, has held that this was not alleged in the Show Cause Notice and also that part of the gold belonged to the respondent. there is no dispute about the fact that the respondent in his statement has clearly admitted that only 300 grams gold belonged to him and rest belonged to his roommates a Kuwait, that they would collect it from him in India after paying service charge of Rs. 5000/- per 100 grams. The fact that the passenger is not the owner of the goods has been clearly brought out in para 2 of the show cause Notice. Government finds no merit in the contention of both the Commissioner (Appeals) and the respondent that the ground that the passenger is a car....