TaxTMI 
TaxTMI 
TaxTMI 
2021 (6) TMI 858
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....the appellant answered in the negative. However, on being frisked by hand-held metal detector, a beep sound was heard near his body. On further enquiry the appellant informed that he was wearing a silver coated - gold chain and a gold kada. For further enquiry and investigation the appellant was offloaded by the officers and was brought to the customs arrival hall for his detailed examination and personal search. That the hand baggage of appellant was diverted for X-ray screening. Nothing objectionable was observed. Then the appellant was asked to pass through the door frame metal detector, after removal of all metallic items he was wearing including the silver coated gold chain and Kada, no beep was noticed. The appellant was again asked whether he wanted to declare any dutiable items to the Customs, to which the appellant once again replied in the negative. After that, the appellant was served upon a notice under section 102 of the Customs Act and his personal search was taken in presence of two witnesses. In the personal search nothing objectionable was noticed. To ascertain the genuineness and purity of the silver coated gold jewellery, jewellery appraiser was called by the Off....
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....ent. All the payments were received through bank. He has in his possession related BRCs against the exports made. (viii) His purpose of visit to Bangkok on 05.06.16 was to manage hotels for tourists in Bangkok. He was supposed to talk to the hotels but due to language problem, he was not successful. He did not know anyone in Bangkok and it was only his second visit. (ix) With regard to the documents recovered from his hand bag such as forex card equivalent to Rs. 13 lacs and ATM receipts showing withdrawal of such much money in Dubai, he answered that he had handed over the money to his friend Shri Jitender S. Raghav as an advance payment towards hotel expenses. (x) With regard to the specific question, that from where did he purchase gold chain and kada, he answered he purchased gold chain and kada around four to five months back. He purchased the same on loan from Punjab National Bank. He took a loan of Rs. 50 lacs, out of which he purchased kada and chain for Rs. 19 lacs approx. The remaining amount was spent for purchased of gold from MMTC for making jewellery for export. (emphasis supplied). (xi) With regard to the question that why did he make such a huge investment ....
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....ute confiscation of the jewellery in question under the proposed Sections 111 (i) (j) (l) & (m) of the Customs Act. Further, composite penalty was imposed under Section 112 and 114AA of the Customs Act. 8. Being aggrieved, the appellant preferred appeal before the learned Commissioner (Appeals) on amongst others the following grounds:- "A. That the ld. Adjudicating Authority has passed the orders without appreciating the laws applicable and violation of principles of natural justice. B. That the appellant was a Transit Passenger coming from Bangkok and proceeding to Kathmandu. A transit passenger is not required to pass through the customs check post. So question of declaration of the personal baggage or ornaments worn over the body before the customs authorities in the transit airport does not arise. C. In this case the gold was not imported into India, relies upon case law:- * Empress Mills, Nagpur vs. Municipal committee, Wardha; * K. R. Ahmed Shah vs. Additional Collector of Customs, Madras - 1981 (8) ELT 153; * Shewbuxrai Onkarmal vs. Assistant Collector of Customs and Others -1981 (8) ELT 298 (Cal.) * Trilochan Singh vs. UoI -1981 (8) ELT 667; D. That the app....
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.... not been defined in the Customs Act or under any provision of the Foreign Trade Regulation Act, however, in common parlance, transit passenger is someone who is required to change flight at an Airport that connects to the terminal Airport of the passenger journey. 13. For a detailed and expanded meaning of the term 'import and export' the appellant relies on the ruling of the Hon'ble Madras High Court in K.R. Ahmad Shah vs. Additional Collector of Customs -1981 (8) ELT 153 wherein the Hon'ble High Court dealing with the meaning of the word 'import' or 'export' held that if transit would be considered to cover imported into or exported from, would make even the airborne goods passing through India liable to confiscation and other penalties provided under the Customs Act, as soon as the plane land or takes off from the Airport in India. Such an interpretation would only lead to inconvenience and confusion and at the same time would also result in inordinate delay and irreparable burden on the interstate trade and commerce. Therefore, it is well settled law that unless goods are brought into the country for the purpose of use, enjoyment, consumption or distribution are incorporated ....
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....with P.N. Bank, Gurudwara Road Branch, Delhi wherein the same amount is found debited on 27.04.2016 which was paid to M/s O. P. Jewellers vide Cheque No. 386972. Admittedly, the weight of the two gold articles of jewellery have been found to be 547.5 gm. only which is less than the gold purchased. Thus, the conclusion of the Court below that there is no co-relation between the gold purchased by the appellant in April, 2016 and the jewellery seized from him on 06.06.2016 is bad both on facts and in the eyes of law. The Court below have misconceived by drawing adverse inference on the ground that the weight or quantity of jewellery seized from the appellant is less than the weight or quantity of gold purchased in April, 2016. Such adverse conclusion could have been valid if the weight of jewellery seized would have been more than the weight of gold purchased. 19. It is further urged that there is no iota of evidence to demonstrate that the appellant have purchased gold at Dubai and have attempted to smuggled the same into India, in absence of any such evidence save and except wild guess work by the Revenue. 20. It is further urged that admittedly a transit passenger is not required....
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....at who is an 'eligible passenger' in terms of Notification No. 12/2012. As per the said definition, the appellant appears to be an ineligible passenger. (d) The appellant failed to provide details of licit possession of seized goods despite being given a chance in this regard. (e) The appellant has imported seized goods in contravention of Section 77 and 79 of the Act read with Baggage Rules 1998, Para 2.1-2.20 of FTP 2009-14. Seized goods are accordingly liable for confiscation under Section 111(d), 111(i), 111(j), 111(l) and 111(m) of the Act. (f) The appellant knowingly carried the gold imported with an intention to evade customs duty. (g) The appellant has imported goods of commercial nature in personal baggage, which is not allowed. (h) The appellant has imported goods in baggage which are not bonafide household goods and personal effects and thus would qualify as passenger baggage to avail of exemption in terms of R.3(1)(h) of Foreign Trade(Exemption from application of rules in certain cases) Rules,1993 and would constitute prohibited goods in terms of provisions of FTP Act, 1992. (i) Since the goods imported by the appellant is in commercial quantity for monetar....