TaxTMI 
TaxTMI 
2016 (7) TMI 227
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..... No. 1656, Badiyar House, PO Beripadave via Uppala, Kasarkod District, Kerala and that he was holder of Indian passport bearing No. Z 1951375 issued on 03.09.2009, and had travelled from Dubai by Emirates Airlines flight No. EK 568. The said passenger was found to be carrying two rexin bags, one bag wrapped with cotton cloth and three plastic covers. The person's baggage searched under proper Mahazar was among other things found to contain goods 164 cartons of Cigarettes, one taka of black burkha cloth. During the personal search of the passenger, it was found that he had concealed two packets wrapped with brown tape around his stomach under the pant belt containing in all 44 gold chains of different types/sizes weighing in toÉl 500 grams approximately. When questioned the passenger informed that he had concealed the above said gold chains in order to avoid Customs Duty. The accused had stayed in Dubai only for two days and he was not eligible to import gold in any form. 2.2. In addition to the gold ornaments, the Superintendent also found one boarding pass in respect of seat No. 33K (flight No. EK 568), electronic ticket for travel from Dubai to Bangalore ....
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....d into readymade burkhas (around 100 Nos.) of different sizes; that he carries them back to Dubai and sells them in their shop; that the money got from this business is used for purchase of burkha cloth as well as for family maintenance; that while going to Dubai he usually boards the flights from Mumbai by travelling from Kasargod to Mumbai by bus or train; that he travels to Dubai very frequently, almost every week and sometimes within a day or two from the date of arrival in India. 2.4.2. Shri Bayer Mohammed Asraf further stated that he had arrived by EK 568 at Bengaluru International Airport at 0231 hrs and was carrying his baggages containing 164 cartons of Cigarettes packed in 6 bags and was also carrying gold concealed on his body (under his belt); that after passing through Immigration and after collecting his baggages from the International baggage claim area, he was moving out of the Customs Area through the Green Channel Gate; that the officers on duty asked him to come inside and go to the red channel for detailed examination of his baggage; that on examination they found 164 cartons of Cigarettes, one taka of black burkha cloth neatly packed in two rexin bags, one bag....
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....000 /-on Shri Bayar Mohammed Asraf under Section 114 AA of the Customs Act, 1962. 3. Being aggrieved by the said Order-in-Original, the applicant filed appeal before ommissioner (Appeals) who vide Order-in-Appeal No. 165/2012-CUS (B) dated 28.09.2012 upheld the Order-in-Original and rejected the appeal. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this revision application under Section 129 DD of Customs Act, 1962 before Central Government on the following grounds: 4.1 That the mahazar states that the applicant was moving around in the arrival lounge in a suspicious manner and appeared to carry some contraband. That the factual position was that the applicant had approached the Customs officer on duty in the arrival lounge to declare the goods brought by him and had requested the officer to fill up the Customs declaration form. That had neither entered the green channel nor concealed any goods/ information from the Customs officers. That the applicant was not given an opportunity to make a true declaration of the goods brought by him and was apprehended by the officers before he could enter the red channel for payment of appropria....
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....t understand and have arrested him for alleged offences which were not committed by him at any point of time. 4.5 That the passport of the applicant was seized under mahazar dated 22.04.2010 in spite of unequivocal judgment by the Hon'ble Supreme Court of India in the case of Suresh Nanda vs Central Bureau of Investigation (2008) 3 SCC 674, Gian Singh vs State of Rajastan 2000 (1) Crimes 25 (SC) and Hon'ble High Court of Karnataka in the case of Brijesh Singh and Another vs State of Karnataka and others, ILR 2002 KAR 1427, that passport cannot be seized by Customs officers. That the applicant was prevented from carrying out his legitimate business in Dubai on the ground that his presence was required for investigation but not even once during the last six months, the applicant has been summoned by the investigating officers. That all the evidence relied in the Show Cause Notice viz., mahazar and statement were recorded on 22.04.2010 and no additional evidence has been adduced by the investigation to prove the case against the applicant. 4.6 That in spite of long investigation for about six months, including a search of the residence of the applicant, the investigating off....
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....rnaments and their seizure by the Customs officers. 4.8.2. That the adjudicating authority in Para 23 of Order-in-Original has traveled beyond the Show Cause Notice in as much as the case registered against the applicant in the past have been relied upon and have come to a wrong conclusion that the applicant is a frequent offender, without giving an opportunity to the applicant to defend himself. That the adjudicating authority cannot be relied upon the case of Thiruvananthapuram International Airport and Mangalore International Airport against the applicant as both are not the subject matter of the Show Cause Notice dated 14.10.2010. That the applicant has changed his cigarette brand to Marlboro instead of Gudag Garam. That the actual position was that the cigarettes brought by the applicant were meant for his personal consumption and not for sale. That the provisions of cigarettes and other tobacco products (packing and labeling) Rules, 2008, are not applicable in the present case. That the applicant was under the bonafide belief that he could carry 200 cartons of cigarettes within the value limit of Rs. 25,000/- being the free allowance. That as import of cigarettes is not proh....
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....rted by the applicant for sale. That the applicant knew several persons in Dubai whom he could trust and who could excellently polish the gold ornaments he had carried the same during his previous visit to Dubai. That he had got the gold ornaments polished in Dubai and was returning with the same during his current visit to India. That due to security restrictions -in Dubai Airport he had kept all the gold ornaments in his baggage and was not carrying on his body as alleged by the investigating officer's in the mahazar dated 22.04.2010. That on arriving in Bengaluru International Airport he had promptly approached the Customs officer on duty for help in declaring the same. That the Customs officers without having any valid reason or seeking explanation have seized the gold ornaments and have proposed confiscations of the same. 4.8.5. That gold ornaments brought by him were his own/his family's old ornaments which were brought back after polishing. That the investigation have not produced any evidence in the form of invoice/bill/payment details to prove that the ornaments brought by the applicant were new gold ornaments and were purchased by him in particular shop in Dubai ....
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....NO. 2/2010 and O.R. No.3/2010 as the independent witness was common, on 26.04.2011 at about 11.40 A.M. 4.8.9. That the gold seizure was under the custody of the department and they could have tested the gold from their gold value, as to whether the said gold was old gold or new. That the adjudicating authority has totally ignored his submissions and confirmed the demand made as per the Show Cause Notice Dated 14.10.2010. 4.8.10 That his statement had been obtained out of coercion, threat and inducement and hence his statement should not be relied upon. 5.Personal hearing in this case was scheduled on 04.08.2015, 03.09.2015 and 18.09.2015. None attended the hearing nor sought postponement. 6.Government has carefully gone through the relevant case records available in case file & written submission and perused the impugned Order-in-Original and Order in-Appeal. 7.On perusal of records, Government observes that the applicant had brought as personal baggage Cigarettes bearing the marking Filter Kretek Cigarettes, Gudang Garam International made under authority of PT: Gudang Garam Tbk, Kediri, Indonesia, 44 gold chains total weighing 500 grams and burkha cloth (around 150 to 200 me....
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....mercial quantity of 164 cartons of Cigarettes, valued at Rs. 16,400/- under Section 111 (d), (i),(l), (m) and ( o) of the Customs Act, 1962, confiscation of 44 gold chains valued at Rs. 7,84,000/- under Section 111 (d), (i),(l), (m) and ( o) of the Customs Act, 1962 with an option to redeem the goods on payment of redemption fine of Rs. 4,00,000 /- payment of applicable duties in terms of sub section (2) of Section 125 of the Customs Act, 1962 and imposed penalty of Rs. 1,50,000 /- on Shri Bayar Mohammed Asraf, under Section 112 (a) & (b) (v) of the Customs Act, 1962 and imposed penalty of Rs. 1,00,000 /- on Shri Bayar Mohammed Asraf under Section 114 AA of the Customs Act, 1962.Commissioner (Appeals) vide Order-in-Appeal No. 165/2012-CUS (B) dated 28.09.2012 upheld the Order-in-Original and rejected the appeal of the applicant. Now the applicant has filed this revision application on grounds mentioned in para 4 above. 8.Government observes that it is an uncontested fact that the impugned goods were not declared to the Customs under Section 77 of the Customs Act, 1962 and the passenger passed through the green channel. At the outset Government notes that the applicant in his state....
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....t observes that on personal search 44 gold chains concealed in two packets wrapped with brown tape around his stomach under the pant belt were recovered. It is an uncontested fact that the goods were not declared to the Customs under Section 77 of the Act and the passenger passed through the green channel. Neither was the applicant entitled to import the impugned gold under Rule 6 of the Baggage Rules as he did not fulfill the conditions of Notification 12/2012-Cus dated 17.03.2012 as clearly brought out in the orders of the lower authorities. 9.1.The applicant was therefore not eligible to import gold and that too undeclared in a substantial quantity, the same cannot be treated as bona fide baggage in terms of Section 79 of the Act ibid. The said gold is imported in violation of Foreign Trade Policy, provisions of Sections 77,79,11 of Customs Act, 1962; para 2.20 of Exim Policy of 2009-14 and provisions of Section 3(3) and 11(1) of Foreign Trade (Development & Regulation) Act, 1992. The same would appropriately constitute "prohibited goods" liable to confiscation under Section Ill(d) of the Customs Act,1962. 9.2.Further, Government notes that the applicant's contention that ....