TaxTMI 
TaxTMI 
2022 (4) TMI 1216
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....s carrying a total weight of 9994.38 grams 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 Sing....
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....50 per 10 grams. As per sec. 77 of the Customs Act, 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 unde....
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....o declare the items and pay appropriate customs duty. He had sufficient dollars for making 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 Ce....
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....r a period of not less than six months of stay abroad; and short visits, if any, made by the eligible passenger during the aforesaid period of six months shall be ignored 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. I....
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....urrency to pay the customs duty. Merely, on the basis of the statements recorded on 18.2.2009, it is alleged that the appellant has attempted to smuggle the gold jewellery and to 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 Arumuga....
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....0. The foremost contention put forward by the learned counsel for the appellant is that the appellant is an eligible passenger who is entitled to import gold. Notification No. 31/2003 has 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....
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....nd the petitioner is entitled for order of discharge. The prosecution sought to be initiated against the petitioner is quashed. Bail bond of the petitioner to stand cancelled and cash security, if paid, will 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 optio....
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....iance with the provisions of law as pointed out earlier was not kept in view either by the original, or the appellate authority or the revisional authority. 4. In that view of the matter, we set aside the orders of the Assistant (sic. Deputy) Collector of Customs and the appellate 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....