TaxTMI 
TaxTMI 
TaxTMI 
2016 (7) TMI 1020
X X X X Extracts X X X X
X X X X Extracts X X X X
....n) to the Gate Officer. The Customs portion of disembarkation card of the passenger reflected that he did not declare anything against the column "Total value of the imported goods" Being not satisfied, the officers examined his two pieces of hand baggage in presence of the applicant and two independent witnesses but nothing incriminating was recovered. A personal search was conducted in the presence of a gazetted officer and two independent witnesses. As result of personal search, sit was found that passenger had concealed six poly packets in the lower portion of his two legs inside the pair of socks worn by the applicant wrapped with skin colour knee caps thereon. The said six poly packets were opened by the Customs officers in presence of applicant and two independent witnesses, which resulted in the recovery of 3kgs and 350 grams of ornaments made of yellow metal believed to be gold, in chain form of different sizes and design. Apart from that, currency of foreign origin 1 Dinar and 3105 Dirham were also recovered from the wallet carried by Shri Abdul Salam Chamundi. He was asked to produce any licit documents for the acquisition/possession and or importation of the same but he....
X X X X Extracts X X X X
X X X X Extracts X X X X
....j), (l) &(m) of the Customs Act, 1962. The goods at sl.no. and 14 had been seized under the provisions Section 110 of the Act, ibid on a reasonable belief, those would be relevant to the proceedings of the case. The goods at sl.no. 9,10 and 11 had been seized on a reasonable belief those were used to conceal the goods mentioned at sl.no. 1 to 6 and were liable to confiscation under Section 119 of the Customs Act, 1962. 2.2 Statement of the applicant was recorded on 21.06.2012 under Section 108 of the Customs Act, 1962 in which he inter-alia stated that he was engaged in the profession of trading of garments from Mumbai to Dubai; that he had arrived at NSCBI Airport Kolkata from Dubai via Doha by flight no. QR 294 dated 21.06.2012; that he was intercepted at the exit gate of the Customs arrival hall by the Customs officers while he was passing through the green channel; that on being asked by the Officers whether he was carrying any dutiable goods to which he replied in the negative; that his baggage was examined in the presence of two independent witnesses but nothing incriminating was found; that his personal search in presence of a Gazetted officer and two independent witnesses ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....7,980 /- 6. 61pcs. of gold chains 18K Gold 200.500gms 4,75,185 /- Total 562 pcs. of gold chains 3367.500 gms 85,14,265 /- 2.4 In this case the applicant was trying to clear the goods in a clandestine manner concealed in his person through green channel by misusing the green channel facility. On earlier occasions also as admitted by him, he had carried similar consignments and he was an habitual offender. The applicant was arrested under Section 104 of the Customs Act, 1962 with the prior permission of competent authority. He was produced before the Ld. C.J.M. of Barasat Court on 22.06.2012 and was granted bail by the Ld. C.J.M. on the same day. 2.5 On investigation of the mobile no. given by the applicant, it was revealed that the number belonged to one Shri Munawar Hussain Damdaleu, Anjum Nasheman, Navayat Colony, Bhatkal. However, enquiries made with his parents residing at his address revealed that Shri Munawar Hussain Damdaleu was residing along with his family at JP Nagar Bangalore and they were not aware about his complete address. 2.6 A Show Cause Notice dated 04.12.2012 was issued to Shri Abdul Salam Chamundi proposing confiscation ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... unit by filing a petition in Learned Court of Chief Magistrate, Basarat, West Bengal. That presently the seized goods are under process of disposal by disposal unit. That the goods are not absolutely confiscated therefore the disposal of goods by the department is not at all justified. 4.5. That the goods are being non notified goods were liable for re-export. 4.6. The applicant relied on the following case laws: Bio-Chemical Pharmaceuticals Ltd Vs Commissioner of Customs Mumbai 2005 (186) ELT 564 (Tri Mum). V.P. Hameed Vs Collector of Customs, Bombay 1994 (73) ELT 425 (Tri). Kader Mydin Vs Commissioner of Customs (Prev), West Bengal 2001(136) ELT 758 (Tri-Kol). 5. A show cause notice was also issued to the Respondent Commissionerate on 14.12.2015, in response to which the following submissions have been made: 5.1. That the contention of the applicant that gold is not a prohibited item does hold ground in light of the judgement of 0m Prakash Bhatia Vs Commissioner of Customs 2003 (6) SCC 161 which states that: "10-From the aforesaid definition, it can be stated that (a) if there is any prohibition of import or export of goods under the Act or any other law f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....able in case file, oral & written submission and perused the impugned Order-in-Original and Order-in-Appeal. 8. On perusal of records, Government observes that on 21.06.2012 on the basis of information officers of Customs at Kolkata Airport intercepted and examined in detail the baggage of Shri Abdul Salam Chamundi who arrived from Doha by Flight No. QR 294. The examination under panchnama resulted in recovery of non bonafide baggage items such as 562 pieces of gold chains valued at Rs. 85,14,265/- concealed on the body of the passenger. The applicant had not-declared the goods and hence the goods were seized under reasonable belief that these constituted non bonafide baggage which were smuggled into the country and therefore, liable for confiscation under the provisions of the Customs Act, 1962. In his voluntary statement recorded under Section 108 of the Customs Act, 1962 he admitted the he was not the owner of the impugned goods but just a carrier working for a monetary gain. A Show Cause Notice was issued to him and subsequently the case was adjudicated vide Order-in-Original No. 43/2013 dated 01.05.2013 ordering confiscation of seized goods valued at Rs. 85,14,265/- with an o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r import of which is subject to certain prescribed condition if the conditions are not fulfilled. Further in the case of Samyanathan Murugesan vs Commissioner reported in 2010(254) ELT A15 (SC) the Hon'ble Supreme Court has held that the passenger did not fulfill the eligibility criteria it makes the imported gold prohibited goods. 10.2. The applicant was neither eligible to import gold nor did he declare the impugned goods that were in a substantial/commercial quantity. Instead he had carefully concealed them on his person to smuggle it into the country and to hoodwink the authorities, Hence, the same cannot be treated as bonafide baggage in terms of Section 79 of the Act ibid. The said cold is imported in violation of provisions of Section 77, 79, 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 thus appropriately constitute 'prohibited goods" liable to confiscation under Section 111 (d), (j), (l) and (m) of the Customs Act, 1962. 10.3. Therefore, Government finds no reason to interfere with the order of the lower authority ordering confiscatio....