TaxTMI 
TaxTMI 
2022 (4) TMI 1216
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....of assorted gold jewellery covered in a polythene cover and pouches. The contents of each pouch were weighed. The gold assayer assayed all jewellery items and he certified that the jewellery is made of 22 carat gold. The appellant had also handed over his Singapore passport, counterfoil of the checked in baggage and boarding pass. He stated that a copassenger by name Manoj would clear his checked in baggage and that he had filled in the Customs Declaration Form and handed over the same at the Customs gate exit. The said declaration form was collected from the customs officers. In the declaration form the appellant had not declared any dutiable goods. To the query made by the DRI officers, whether he had any dutiable goods or other items, the appellant had replied in negative. On examination of the checked in baggage of the passenger, it was found to be a carton box containing one 40 inches Sony Bravia 40V LCD television. On the personal search of the passenger, he was found to carry a photocopy of three lists showing the total weight and quantity of the gold jewellery carried by him and also currency notes for 5,380 US Dollars and 230 Singapore Dollars. He did not have any bill for....
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....t, 1962, the owner of the baggage shall, for the purpose of clearing it, make a declaration of its contents to the proper officer. As per para 2.20 of the Foreign Trade Policy 2004 - 2009 formulated under sec. 5 of the Foreign Trade (Development and Regulation) Act, 1992, bonafide personal baggage may be imported by a person coming to India from a foreign country. The Central Government have made provisions for prohibiting, restricting or otherwise regulating import or export of goods under sec. 3(3) of Foreign Trade (Development and Regulation) Act, 1992 and as per the said section, all goods to which sub-section (2) applies shall be deemed to be goods, the import or export of which has been prohibited under sec. 11 of the Customs Act, 1962. Non-bonafide baggage is to be treated as prohibited goods under sec. 11 of the Customs Act, 1962 r/w sec. 3(3) of Foreign Trade (Development and Regulation) Act, 1992. Such foreign goods brought as non-bonafide passenger baggage without declaration of the same are liable to confiscation under sec. 11 of the Customs Act, 1962 and the person concerned therewith is liable to penal action under sec. 112 and punishment under sec. 135 of the C....
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....payment of customs duty towards the gold jewellery carried by him. The allegation of the department that the appellant had made false declaration and intended to smuggle the gold without paying duty is without any basis. The allegation that the appellant failed to declare the dutiable goods cannot sustain as the department has not furnished the alleged declaration. 10. The entire case is based on the statements recorded from the appellant Shri Rajan Ran. These statements were retracted immediately and these statements cannot be relied at all. Further, the appellant is an eligible passenger who is entitled to import gold into India. He adverted to Notification No. 31/2003-Cus. which reads as under:- "In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962) and in supersession of the notification of the Government of India in the erstwhile Ministry of Finance (Department of Revenue) No. 171/94-Customs, dated the 30th September, 1994, published in the Gazette of India, vide number G.S.R. 733 (E), dated the 30th September, 1994, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exemp....
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....ed if the total duration of stay on such visits does not exceed thirty days and such passenger has not availed of the exemption under this notification or under the notification being superseded at any time of such short visits. 11. As regards the statements recorded from the appellant, it is submitted by the learned counsel that all the statements were retracted at the earliest point of time. According to the appellant, when he arrived at Chennai Airport and proceeded to pay the customs duty for the gold jewellery carried with him, certain persons claiming themselves to be officers of customs, secluded him from the queue and forcibly took him to a separate room and confined him there for several hours. The officers did not accept the explanation given by him and they proceeded to record incriminatory statements from the appellant using threat, coercion and force. The statements recorded under such vitiated circumstances was retracted by him at the earliest point of time when he was remanded to judicial custody. In such retracted statements, he explained the actual facts. He never had any intention not to declare the gold jewellery or not to pay the customs duty. 12. The appellan....
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.... evade customs duty. The goods under import (gold jewellery) are not prohibited goods and are freely importable by an eligible passenger. The adjudicating authority has not considered any of these aspects before concluding that the gold jewellery and currency are liable for absolute confiscation. He prayed that the appeals may be allowed. 16. The learned AR Shri R. Rajaraman appeared for the department. He adverted to para 2 of the Show Cause Notice and argued that the appellant had filled up the declaration and handed over to the customs officers. In the declaration form, he had stated that there are no dutiable goods to be declared. To the query put by the DRI officers as to whether he had any dutiable goods or other items, he had answered in the negative. From this, it is very much clear that the appellant has attempted to smuggle the gold into India. Further, from his statement recorded on 18.2.2009, it has come out that he has carried the gold jewellery for another person namely Manoj @ Vasu Arumugam. The said person Vasu Arumugam did not respond to summons issued to him. This itself speaks that the appellant was carrying the gold on behalf of Vasu Arumugam. If the customs of....
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....been already reproduced above. The department does not have a contention that the appellant does not fulfill the criteria of an eligible passenger. In case an eligible passenger intends to import gold, he has to make a declaration at the airport. The case of the department is that the appellant has not declared any dutiable goods. It is also stated that the declaration form filled in by him was collected by the customs officers. The learned counsel for appellant has asserted that as no such declaration form has been made part of the relied upon documents, the allegation that the appellant has attempted to smuggle the gold without declaring cannot be accepted. Though it may be true that the declaration has not been made part of the relied upon documents, it has to be seen that the appellant was intercepted at the exit gate. Had he any intention to pay the customs duty he ought to have proceeded to the Red Channel. Instead, he had proceeded through the green channel and was about to exit the airport. Further, there is some discrepancy as to why he has stated that another person named Manoj @ Vasu Arumugam has asked him to carry the Sony Bravia TV for him. Shri Vasu Arumugam was expar....
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....l be returned to the petitioner. Similarly gold and silver seized from possession of the petitioner including related documents and passport be returned to the petitioner forthwith. Rule made absolute." 23. In the case of Shaik Jamal Basha Vs. Government of India - 1997 (91) ELT 277 (AP), the Hon'ble High Court remanded the matter to given an opportunity to the petitioner to pay redemption fine in lieu of confiscation and for redeeming the gold. "3. But, all the same, we find the petitioner as entitled to a different relief. The order of confiscation is made under Section 111 of the Customs Act, 1962 on account of concealment. Section 125 requires that whenever confiscation of any goods is authorised by the Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under the Act or under any other law for the time being in force, and shall in the case of any other goods, give to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit. Rule 9 of the Baggage Rules, 1978 framed under Section 79(2) of the Customs Act, 1962 lists Gold in any form other than ornaments in Appendi....
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....llate as well as the revisional authorities and remand the matter to the Deputy Collector of Customs, 4th respondent herein to allow opportunity to the petitioner to pay in lieu of confiscation such sum as he decides fit and decide the matter according to law. To facilitate disposal, we direct the petitioner to appear before the Deputy Collector of Customs on the 12th of August, 1996 on which date the Deputy Collector of Customs shall proceed with the case. Copy of this order be forthwith transmitted to the respondents." 24. In most of the decisions, it has been held that when necessary documents have been produced and the petitioner is an eligible passenger, an option to redeem the gold ought to be given. Absolute confiscation should be an exception rather than a rule. 25. From the discussions made above, we are of the considered opinion that the appellant has to be given an option to redeem the gold jewellery and currency and the Sony Bravia TV which was imported been carried by him. The appellant, however, has to pay redemption fine to the tune of 10% of the value of the goods as noted in the impugned order as redemption fine for release of the gold jewellery, currency and Son....