2016 (6) TMI 10

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.... the provisions of Section 77 of the Customs Act, 1962 by not declaring the same of the Customs at red channel. Spot adjudication was conducted, on having passenger's request, for the waiver of show Cause Notice. During oral personal hearing, passenger admitted the fact that she is a carrier and brought the gold bangles on behalf of some one else for some monetary gains. 2.1 In terms of Section 77 of the Customs Act, 1962, the owner of any baggage shall for the purpose of the clearing it make a declaration of its contents to the proper officer. Further, any dutiable or prohibited goods which are not included or are in excess of those included in the declaration made under Section 77 of the Customs Act, excess of those included in the declaration made under Section 77 of the Customs Act, 1962 or nay goods which do not correspond in respect of the value or in any other particular with the declaration made under Section 77 of the Customs Act, 1962 shall be liable for confiscation under Section 111(I) and (m) of the Customs Act, 1962. Further, in terms of para 2.20 of Chapter 2 of the Foreign Trade Policy 2009-14, bonafide household goods and personal effects may be imported as ....

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....ng given in spite of the passenger acting as a carrier for monetary consideration which is recorded in the record of personal hearing before the adjudicating authority held on 26/06/12 an adequately discusses in Order-in-Original passed by the adjudicating authority. This fact of passenger being a carrier has been ignored and not taken into consideration resulting in granting an unintended benefit of the smuggler passenger. 4.2 The adjudication authority at Chennai airport in its Order-in-Original No 343/2012 dated 30/06/2011, 32/10 dated 03/05/2012, 33/10 dated. 3/5/2011 and in several other orders has ordered absolute confiscation in carrier cases. The said orders were upheld by Commissioner (Appeals) in Order-in-Appeals No 480/11 dated 29/07/2011, 479/2011 dated 29/07/2011 and 481/11 dated 29/7/2011. Finally, the absolute confiscation was also upheld by government in these cases vide GOI order No 352-354/12 dated 28/8/2012. Similarly, Government in its Revision order No 401-406/12-CUS dated 11.10.2012 and 407/409/12-Cus dated 12.10.2012 pertaining to Chennai cases has upheld the absolute confiscation of goods brought by carrier passenger. 4.3 Absolute confiscation in such ....

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....Commissioner (Appeals). 5.7. That the Hon'ble Tribunal order in the case of Uma Balasaraswathi Vs collector of Customs reported in 1988 (37) ELT 106 is squarely applicable to the present case in as much as the order of absolute confiscation by stating that the non-declaration which entails confiscation under Section 111(I) should be conscious and International non-declaration and would not take within its ambit more unintentional omission such as not declaring the ornaments worn on the person which are not at all concealed but are visible to the naked eye. That in this case the respondent was wearing the gold bangles in her hand. That it is not denied by the applicant. That there is no declaration required but the original authority had imposed redemption fine and penalty but the Commissioner (Appeals) had applied his mind and passed the order legally and properly. 5.8. That Section 125 of the Customs Act, 1962 is very much clear that the goods confiscated can be allowed to be redeemed by the owner of the owner is not known the person from whose possession or custody such goods have been seized. That the legislature has clearly stated to give option to redeem the goods ei....

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....bsp;42,000/- under Section 112(a) of the Act, ibid. Being aggrieved by the order, the respondent filed appeal before commissioner (Appeals), who allowed re-export on payment of redemption fine of Rs.  75,000/- and reduced the penalty of Rs.  20,000/- aggrieved by the impugned Order-in-Appeal, the applicant has filed the Revision Application on grounds in the para 4. 9. Government observes that the main contention of the applicant is that the fact that respondent is a carrier has been ignored by the commissioner (Appeals) who has allowed the unintended benefit of re-export to a carrier. It is therefore, pleaded that absolute confiscation ordered and penalty imposed by original authority be upheld. 10. Government further observes that before the Commissioner (Appeals) the respondent claimed she is not a carrier and gold is not a prohibited item and requested for re-export as she is a Sri Lankan passport holder. The Commissioner (Appeals) accepted the request for redemption under Section 125 ibid and re-export under Section 80 ibid holding that the respondent had attempted to smuggle the gold bangles is contravention of Section 77 but is was not concealed in any ingeni....

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....ons of the higher Courts the ratio of which is squarely applicable to the instant case. 12.1 Government notes that the absolute confiscation in such cases upheld in the judgements of Hon'ble High Court of Madras in the case of CC Air, Chennai Vs. Samynathan Murugeshan 2009 (247) ELT 21 (Mad.). The said order was upheld by Hon'ble Supreme Court in the order dated 11.02.2010 reported as 2010(254 ELT A15 (S.L) dismissing the petition for special leave to Appeal (civil) No. 22072 of 2009 filed by Samyanathan Murugessan. Supreme Court Passed the following order:- "Applying the ration of the judgment n the case of OM Prakash Bhatia Vs. Commissioner of Customs, Delhi reported in 2003 (155) ELT 423 (S.C) 2003(6) Section 161 to the facts of the case/ we grind that; in the present case/ the assesse did not fulfil the basic eligibility criteria, which makes the imported item a prohibited goods; hence/we see no reason to interfere with the impugned order. The special leave petition is accordingly dismissed." 12.2 Hon'ble High court of Madras in their judgement dated 02-03.2012 in WP No. 21086/2002 in the case of Aiyakannu Vs. JC Customs reported on 2012-110l-806-HC-M....