TaxTMI 
TaxTMI 
2016 (6) TMI 70
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....ppeal No. 400/2015 dated 06.08.2015 as both pertain to a common Order-in-Original No. 17/2015 dated 20.04.2015. 2. Brief facts of the case are that on 14.05.2014 the respondent passenger by the name Smt. shaik Shamim Banu, wife of Shri Shaik Mujeeb, holder of Indian passport number F2057845 issued at Hyderabad, arrived at Chennai Airport from Kuwait by Kuwait Airways flight no KU 343 dated 13.05.2014. She was intercepted on reasonable suspicion, while walking through green channel for the exit by Customs Officer. The said passenger was asked specific question as to whether she was carrying any gold/contraband goods either in her baggage or on her person to which she replied in negative. Upon noticing that the passenger became nervous, she was brought along with her baggage for its detailed examination and her personal search. Before commencement of the same, she was once again questioned as to whether she was in possession of gold/contraband goods to which she replied, she was having some food stuff and toiletries valued at Rs. 4000/- and used clothes only. A detailed examination of her three checked-in bags and one hand bag was conducted, in the presence of witnesses, but nothing....
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.... that the day before she was leaving for Chennai, her husband gave her 4 gold cut bars and 2 nos. gold bangles totally weighing 1375 grams and asked her to conceal them in her bra by wrapping the gold in a white tissue paper and polyhthene cover and to take to India without declaring to Customs; that one Shri Mahaboob Basha would come to their home in India and would give her Rs. 100,000/- and she should in turn hand over gold to him; that as she needed money of her daughter's marriage, she agreed to smuggle the impugned gold into India; that she did not have any legal documents which support the import of the impugned gold; that she admitted, it was an offence bringing gold by concealing and not declaring to Customs and did the same for monetary benefit and requested to be pardoned. 2.2 On a reasonable belief that Smt. Shaik Shamim Banu was guilty of an offence punishable under Sections 132 & 135 of the Act, ibid she was arrested on 140.05.2014 and was produced before the Hon'ble Judicial Magistrate, Alandur, Chennai. who sent her to judicial custody. Before the Magistrate, she retracted her statement tendered earlier before the customs on the grounds that it has been recorded ap....
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.... the Order-in-Appeal are neither legal nor proper in as much as the passenger had attempted to smuggle the gold by way of concealment and by ways of no-declaration knowing well that she was not an eligible passenger to import gold and thus has a culpable mind to smuggle them into India without payment of duty. 4.2 That the passenger has not declared to the Customs officer, the possession of gold which was concealed under brassier worn by her. The passenger, has contravened Sections 77 and 11 of Customs Act, 1962 read with Regulation 3(1) of foreign Exchange Management (Export and Import of Currency Regulations 2000 which made the smuggled gold liable for absolute confiscation under Section 111(d) and (I) of the customs Act, 1962. The appellate authority without considering the following aspects ha given an option to redeem the gold an payment of redemption fine of Rs. 7,00,000/- and penalty of Rs. 1,00,000/- for re-export. 4.2.1 That the eligibility of passenger to clear the gold imported by him is covered under Notification No. 12/2012-Cus dated 17.3.2012. The said notification states that the passenger of Indian origin or a passenger holding a valid Indian Passport issued under....
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....ld is established in para 21 of the Order-in-Original is not acceptable as the passenger herself in her voluntary statement given under Section 108 of Customs Act, 1962 has staed that her husband gave her 4 gold cut bars and 2 nos. bangles weighing 1375 grams and asked her to conceal them in her bra by wrapping the gold in a tissue paper and polythene cover and to take them out to India without declaring to Customs, to be handed over to Shri Mahaboob Basha who would come to their home in India and he in turn would give her Rs. 1,00,000/-. She needed the money for her daughter's marriage. The gold did not belong to her or her husband and she did not carry and money (foreign currency to pay duty) since she intended to smuggle the gold by way of concealment. She also replied that she did not have any bill or document for the purchase of the gold. Hence, the passenger is a carrier of smuggled gold and not the owner. The board vide Circular No. 6/2014-CUS dated 06.03.2014 in para 3 (iii) has cited as under: "(iii) wherever possible, the field officer, may inter alia, ascertain the antecedents of such passengers, source of funding for gold as well as duty being paid in foreign currenc....
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....-----The order passed by the original authority, appellate authority and the Revisionary authority are cogent and supported by reasons. The authority recorded the voluntary statement under Section 108 of the Customs Act, 1962 wherein the petitioner had categorically admitted that he was taking the currency clandestinely on behalf of one Abudllah for monetary consideration. This particular evidence was held to be acceptable and cannot be brushed aside and there is no record to show that the statement of the petitioner was recorded under duress/pressure and the same was not voluntary. It is settled legal proposition that statement recorded under Section 108 of the Act, is admissible unlike a statement recorded by a Police officer." 4.6.4 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) N. 4563 of 2013, reported in 2015 (320) ELT (Del) it was held that benefit of Section 125 of Customs Act, 1962 is not entitled as the applicant was mere was mere carrier of goods and same did not belong to him. 4.6.5 Accordingly, the Appellate Authority's order ....
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....Cus. 331/2015 dated 24.06.2015 by reducing the fine to Rs. 7,00000/- and the penalty to Rs..1,00,000/- without going into the merit of the case. 4.10.2 whereas, being aggrieved by the same order of the lower adjudication authority, the department has filed an appeal before the Commissioner of Customs (Appeal-I) on 09.07.2015 on the ground that t the order of the lower adjudicating authority giving re-export option to the passenger is wrong and the prayer of the department was that the subject gold attempted to be smuggled by the passenger, who was a carrier for monetary consideration, should be absolutely confiscated and to set-aside the order of the lower adjudicating authority allowing re-export on payment of the redemption fine and penalty. But the Appellate authority, vide Order-in-Appeal C.Cus No. 400/2015 dated 06.08.2015, simply dismissed department's as "In fructuous" on the ground of merger. 4.10.03 From the above, it is clear that the grounds and the prayer of the passenger and the Department in the Appeals before Commissioner (Appeals) are entirely different, which was not appreciated by the Appellate authority. For the same reason, he should heave examined the issues ....
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....vernment can only annul/modify the order passed under Section 128A and cannot traverse beyond it. Also no new ground can be invoked in the revision stage belong the scope of the Show Cause Notice wherein grounds mentioned for convocation of goods are Section 111 (D) & (I) of the Act. The goods are not prohibited in nature and have rightly been allowed for re-export on reduced fine and penalty. With regard to hearing held for revision of Order-in-appeal No. 400/2015 dated 06.08.2015, he also stated that the original order and appellate order have already merged with earlier Order-in-Appeal No. 331/2015 dated 24.06.2015, therefore, Department's appeal has rightly been dismissed. A written submission dated 13.01.2016 was also made reiterating once again that a new ground cannot be invoked at the revision stage and that Show cause Notice itself proposes respondent as owner as it did not propose penalty on anybody else. 7. Government has carefully gone through the relevant case records and perused the perused the impugned Order-in-Original, both the Order-in-Appeal and the order of the Hon'ble High Court dated 31.08.2015. 8. On perusal of the records, Government observes that it is an....
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.... 4. 9. At the outset, Government observes that the Department's appeal against the impugned Order-in-Original before Commissioner (Appeals) pleading for absolute confiscation of the impugned gold was not considered on merits on the grounds of merger as passenger's appeal against the impugned Order-in-Original had already been decided by Order No.331/2015 dated 240.06.2015 dated 240.06.2015. The commissioner (Appeals) also held that the issue of Order-in-Appeal on passenger's appeal and subsequent filing of appeal by the Department has led to this situation and the apparent remedy lies under Section 129DD viz Revision Application. The Department on the other hand has contended that the commissioner (Appeals) has failed to appreciate that the grounds and prayer of the passenger and that of the Department in their respective appeals before him are entirely different. While the passenger had filed the appeal for reduction of fine and penalty the prayer of the Department was that absolute confiscation of the goods be ordered. 9.1 Government finds merit in the contention of the Department that question of merger does not arise as the issue on which the impugned Order-in-Original is cha....
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....lso not fulfilled the conditions stipulated under Notification No. 12/2012-Cus dated 17.03.2012 as amended and Rule 6 of the Baggage rules. Therefore, it is pleaded that the passenger was not eligible to import the gold and accordingly the impugned orders of the lower authorities allowing redeeming of the goods an re-export are unlawful and has the effect of making smuggling an attractive proposition and be set-aside. 11. Government observes that it is an uncontested fact that the goods were no declared to the Customs under Section 77 of the Act and the passenger passed through the green channel. Even upon being questioned repeatedly if she had anything to declare, she answered in the negative before her personal search was conducted. However, upon her personal search 1375 grams of gold was recovered and the passenger admitted in her statement that she was carrying the gold the someone else for monetary consideration. However, she later claimed that seized gold belonged to her as it was handed over to her by her husband. The passenger has also not fulfilled the conditions of Notification 12/2012-Cus dated 17.03.2012 nor was she entitled to import the impugned gold under rule 6 of ....
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....ed gold. Based on the admission statement recorded under Section 108 of the Customs Act, 1962, the Department has contended that the respondent is nothing but a carrier of gold for monetary consideration. government finds that there is no dispute about the fact that in her statement recorded on 14.05.2014, the respondent has clearly admitted that she imported 1375 grams of 24 carat gold which was given to her by her husband who asked her to conceal it is her bra by wrapping it is a tissue paper and polythene cover and take them to India without declaring to customs, to be handed over to Shri Shaik Mahaboob Basha who would come to their home in India and in turn would give her Rs. 1,00,000/-. therefore, it is clear from her statement that respondent is not the owner of the goods and has acted as a carrier merely for a consideration. 14. In this regard, Government also notes that the statement recorded before the Customs officers is valid evidence. Hon'ble supreme Court has held in the case of Sureet Singh Chabra Vs. Union of India 1997(89) ELT 646 (SC) that statement made before Customs officers though retracted within six days is an admission and binding since Customs officers are....