TaxTMI 
TaxTMI 
2019 (12) TMI 1380
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.... notice to the petitioner on his correct address." A Revision Application No. 380/15-A/B/2015-R.A., dated 19-5-2015 was filed by Commissioner of Customs (Preventive) Jodhpur (hereinafter referred as customs authorities) against Order-in-Appeal (O-I-A) No. 05 (SLM)/Cus/JPR/ 2015, dated 27-2-2015 passed by the Commissioner of Central Excise (Appeals), Jaipur. Another Revision Application No. 375/37/B/2017-RA, dated 3-11-2017 was filed by Sh. Manoj Kumar Sharma (hereinafter referred as PAX) against the same Order-in-Appeal No. 05 (SLM)/Cus/JPR/2015, dated 27-2-2015 passed by the Commissioner of Central Excise (Appeals), Jaipur. The PAX filed an appeal Bearing No. C/51960/2015-CU(DB) along with stay application on 25-2-2015 before the Hon'ble CESTAT, New Delhi (Tribunal). As the appeal did not lie before the Hon'ble Tribunal, the PAX applied for its withdrawal on 3-10-2017 when the matter came up for final hearing. The Tribunal vide Final Order No. 57034/2017, dated 3-10-2017 dismissed the appeal of the PAX as withdrawn. Subsequently the PAX filed the above Revision Application which is currently pending with the Government. In the instant case the Additional Commissioner of Customs....
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....he PAX pending with Government. 2. The brief facts of the case are that the PAX arrived at Jaipur Airport on 23-9-2012 from Dubai. A seizure of seventy gold biscuits weighing 8164.80 grams valued at Rs. 2,51,89,735/-, UAE Dirham AED 1,05,410, INR Rs. 20,000/- was made under Section 110 of Customs Act, 1962 and seizure for an amount of Rs. 12 lacs in lieu of demand draft issued by Al Fardan Exchange along with concealment material (six plastic packets and spectacles case) valued at Rs. 2200/- was made out under Section 110 of Customs Act, 1962. A statement dated 23-9-2012 under Section 108 of Customs Act, 1962 was tendered by the PAX wherein he confessed that he had brought the impugned gold bars to India to earn profit and did not declare the impugned gold bars and other things viz. Forex, Demand draft, Indian currency, etc. in the customs declaration form submitted to the customs authorities at the airport. The PAX was arrested under Section 104 of the Customs Act, 1962 on 23-9-2012 and subsequently released on bail on 24-9-2012 on furnishing a security of Rs. 84 Lacs by way of fixed deposit and two surety bonds for Rs. 20 lacs each by two guarantors. The PAX sent a retracti....
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....he impugned O-I-A upheld the order of confiscation of the impugned gold bars and cocurred with the adjudicating authority's decision for denial of cross-examination of witnesses and customs officers. He, however, allowed the release of the DD amounting to Rs. 12 lac meant for deposit in NRE Account and confiscated the Indian currency amounting to Rs. 12,500/-. He has waived off the penalty under Section 114AA of the Customs Act, 1962 and reduced penalty from Rs. 30 lacs (Rupees Thirty Lacs) to Rs. 5 lacs (Rupees Five Lacs) imposed under Section 112 of the Customs Act, 1962 on the PAX. He has upheld the adjudicating authority's order regarding absolute confiscation of the seventy gold biscuits weighing 8164.80 grams valued at Rs. 2,51,89,735/- (Rupees Two Crore Fifty One Lacs Eighty Nine Thousand Seven Hundred and Thirty Five) and UAE Dirham AED 1,05,410 (Dirham One Lac Five Thousand Four Hundred and Ten). The revision applications have been filed by the Commissioner of Customs (P) Jodhpur (HQ Jaipur) and the PAX on 19-5-2015 and 3-11-2017 respectively with this office. The PAX initially filed an Appeal Bearing No. C/51960/2015-CU (DB) along with stay application on 25-2-2015 befor....
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....ized from the PAX. During the course of personal hearing the PAX has contended that he arrived on 23-9-2012 from Dubai and was carrying 70 gold bars weighing 8 kg. Approx valued at Rs. 2.5 crore approx, which were purchased by him in Dubai since he is a permanent resident of UAE. Prior to this he had travelled to India 15 months earlier. Therefore he was eligible to carry 10 kgs of gold bars wherein he was carrying only 8 kgs of gold bars (approx). He is the bona fide owner of the impugned goods and had declared the impugned gold bars in the customs declaration form which was handed over at the Red channel counter and misplaced by the customs officer at the red channel. He subsequently submitted another customs declaration form dated 23-9-2012 which does not mention the impugned goods or their value. His initial statement under Section 108 of Customs Act, 1962 was recorded on 23-9-2012. However he retracted from this statement on 27-9-2012. Subsequently the customs authorities recorded the second and third statement on 11-10-2012 and 29-1-2013 under Section 108 of Customs Act, 1962 on his request wherein all facts were stated regarding the bona fide purchase of the impugned goods....
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....ssumed that the original declaration form under Section 77 of Customs Act, 1962 got misplaced at the red channel counter, no evidence has been put forth justifying his stand as to why did he give a 'nil declaration' for the second time under Section 77 of Customs Act, 1962. It is apparent that the PAX gave the impugned declaration under Section 77 of Customs Act, 1962 without any persuasion or coercion from the customs authorities so as to suppress material information and derive undue advantage. It is pertinent to mention that the fact of non-declaration under Section 77 of Customs Act, 1962 has been duly recorded in the statement tendered under Section 108 of Customs Act, 1962 signed by the PAX. Hence the allegation of the PAX that the customs authorities had intentionally misplaced the customs declaration form is baseless and remains unsubstantiated. Therefore this contention of the PAX merits no consideration. 8. Section 123 of Customs Act, 1962 reads as follows : "123. Burden of proof in certain cases. - (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving tha....
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....t for cross-examination to the PAX. 9. No new facts have been brought forth by the PAX before the Government while reiterating his request for cross-examination of the concerned persons and that too subsequently after the personal hearing was held on 22-11-2019 before this authority. No useful purpose will be served by allowing cross-examination at this stage when the same has already been considered and denied by both the lower authorities, i.e., adjudicating authority as well as Commissioner (Appeals). Therefore the Government disallows the request for cross-examination of the concerned persons in light of the aforesaid judgment of the Supreme Court. 10. So far as the PAX's contention regarding his eligibility under Notification No. 12/2012-Customs, dated 17-3-2012 is concerned, a passenger returning to India after six months can bring gold up to 1 kg in the form of bars provided he duly informs the customs authorities at the airport and pays the duty leviable thereon under the said notification, which is not the case here. The PAX brought 8 kgs gold, eight times the quantity permitted under Notification No. 12/2012-Customs, dated 17-3-2012. The plea of the PAX tha....
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....ch he took out from his spectacles case containing two plastic packets (one containing 6 pieces and the other containing 4 pieces of gold bars). No declaration was given by the PAX for the balance 60 biscuits either at the x-ray counter or at the red channel. They were recovered from two cannon camera cases, which were placed inside the hand bag of PAX as per seizure memo dated 23-9-2012. The concealment material has also been seized as per the seizure memo dated 23-9-2012. 12. For the sake of repetition it is mentioned that PAX had submitted a 'nil' declaration form under Section 77 of Customs Act, 1962 on his arrival at the red channel counter in gross violation of provisions of Customs Act, 1962 and he was arrested under Section 104 of Customs Act, 1962 on 23-9-2012 for the same. It is evident that the PAX smuggled the impugned gold bars and did not declare them at red channel counter with an intention to evade customs duty. The PAX's alibi that he was carrying 1,05,410 Dirham for payment of duty in convertible foreign currency on the impugned goods is baseless and merits no credence. The PAX had made out a case of ignorance of law and vindication on part of the Customs au....
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....India as a tourist or otherwise is a crucial condition for re-export of impugned goods. It is observed that the PAX concealed impugned gold bars on his arrival at Jaipur Airport with an intention to evade customs duty. A pre-condition to allow re-export under Section 80 of Customs Act, 1962 is that "a true declaration has been made under Section 77", which is not the case here. As the conditions stipulated under Section 80 of Customs Act, 1962 do not get fulfilled in the subject case re-export of the impugned gold bars cannot be allowed to the PAX under Section 80 of Customs Act, 1962 and is denied. 14. The seizure of forex currency and Indian currency has also been affected in the present case. Section 2(22) of Customs Act, 1962 defines goods as : "goods" includes - (a) vessels, aircrafts and vehicles; (b) stores; (c) baggage; (d) currency and negotiable instruments; and (e) any other kind of movable property. Rule 7 of the Baggage Rules, 2016 stipulates as under : "Currency. - The import and export of currency under these rules shall be gov....
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....ge in any form other than currency notes, bank notes and travellers cheques; (b) bring into India from any place outside India without limit foreign exchange (other than unissued notes) : Provided that bringing of foreign exchange into India under clause (b) shall be subject to the condition that such person makes, on arrival in India, a declaration to the Customs authorities in Currency Declaration Form (CDF) annexed to these Regulations : Provided further that it shall not be necessary to make such declaration where the aggregate value of the foreign exchange in the form of currency notes, bank notes or traveller's cheques brought in by such person at any one time does not exceed US$10,000 ( US Dollars ten thousand) or its equivalent and/or the aggregate value of foreign currency notes brought in by such person at any one time does not exceed US$ 5,000 ( US Dollars five thousand) or its equivalent." It is observed that the PAX did not make the statutory declaration on his arrival to the customs authorities since the Forex (UAE Dirham 1,05,410) carried by him was much higher than the prescribed limit under the FEMA, 1999 read with Foreign Exchange Ma....
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....or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this Act, shall be liable to a penalty not exceeding five times the value of goods." It is observed that this is not a case for imposition of penalty under Section 114AA of the Customs Act, 1962. Therefore the order of Commissioner (Appeals) in waiving the penalty under Section 114AA of Customs Act, 1962 is legally sustainable and is upheld. 18. However in view of the seriousness of the offence wherein 70 (Seventy) gold biscuits weighing 8164.80 grams and valued at Rs. 2,51,89, 735/- and forex 1,05,410 UAE Dirham have been smuggled by the PAX, Government imposes a penalty of Rs. 40 lacs (Rupees Forty Lacs) on the PAX under Section 112(a) of the Customs Act, 1962. 19. The Commissioner (Appeals) vide the impugned O-I-A has allowed the release of the DD amounting to Rs. 12 lac meant for deposit in NRE Account and that of confiscated Indian currency amounting to Rs. 12,500/- (out of Rs. 20,000/- beyond Rs. 7,500). The impugned order-in-appeal is upheld on this aspect as per law. ....