TaxTMI 
TaxTMI 
2025 (1) TMI 1465
X X X X Extracts X X X X
X X X X Extracts X X X X
....re entitled for redemption of the gold jewellery imported by them which was attempted to be smuggled by them without making declaration under the aforesaid Rules. 4. The brief fact of the case are that the petitioners are part of the Tamil Nadu Jewellery Merchants Association at Panruti and had travelled to Malaysia for a period of six days and had returned on 27.07.2013. On arrival, the petitioners attempted to walk through the green channel subsequently were arrested on 28.07.2013 and thereafter, released on 30.07.2013. Meanwhile, statements were recorded from each of the petitioners on 27.07.2013. 5. In the statements that were recorded, these petitioners had stated that each of them were given jewellery which was found in their possession by one Mr.P.S.Ranganathan which was to be handed over to him outside Chennai Airport. Statements recorded from each of the petitioners, are almost identical. Statement of Mr.P.S.Ranganathan who appears to be the organizer of the trip was also recorded on the same date. Several amounts carried by them and value of the jewellery found in their possession. 6. The statement of the petitioner in W.P.No.378 of 2022 namely Sivaguru Sumathi a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... iv. Funds from the chit as well as funds mobilized by him was utilized for purchase of jewellery. i. Through the chit, he managed to provide Rs. 7,75,000/- with an interest of Rs. 5,11,500/- totalling to Rs. 12,86,500/-. ii. Through another scheme for a group of 29 members plus himself, for the 6th month, he took the chit amounting to Rs. 12,00,000/- in his name. iii. He arranged another 5 lakhs through the Panruti Pawn Brokers Association. iv. Therefore, he totally arranged for Rs. 32,00,000/- and all the amounts were handed over to kaliyamoorthy at Panruti itself as per the wish of the copassengers. v. He knew that the members bought gold jewellery and there is no need for him to assit them a they are in the same trade. vi. Co-passengers implicated him as they were not able to account individually and that he would safeguard them. vii. Gold would be converted and given back to them means that the gold brought by them did not belong to them. 7. The above statements that were given by the importers which are similar for most of the petitioners were later retracted on 05.08.2013. A common reply also appears in this background that the petitioners were iss....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... h) Any person who in relation to any goods, does or omits to do act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act is liable for penal action under Section 112 of the Customs Act, 1962. i) As per Regulation 3(1)(a) of the Foreign Exchange Management (Export and Import of Currency) Regulations, 2000, any person resident in India may take outside India currency notes of Government of India and Reserve Bank of India notes up to an amount not exceeding Rs. 7,500/- per person. j) Any person, who in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 113, or abets the doing or omission of such an act shall be liable for penal action under Section 114 of the Customs Act, 1962. 8. In the common reply dated 15.01.2014, the trip organizer namely Mr.P.S.Ranganathan, stated as follows:- i. The passengers had bought 24 Carat gold jewelleries by exchanging the 22 Carat jewelleries worn by them. The passengers were also helped by their relatives in buying. ii. As stated by Mr.Kaliyamoor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....000/- (Rupees Seventy Thousand Only) on Shri T.C.Venkatesan Rs. 50,000/- (Rupees Fifty Thousand Only) on Shri.N.Kaliyamoorthy Rs. 25,000/- (Rupees Twenty Five Thousand Only) on Shri R.Somasundaram Rs. 25,000/- (Rupees Twenty Five Thousand Only) on Shri N.Ramesh Rs. 35,000/- (Rupees Thirty Five Thousand Only) on Shri N.Mathivanan Rs. 25,000/- (Rupees Twenty Five Thousand Only) on Shri L.Loganathan Rs. 35,000/- (Rupees Thirty Five Thousand Only) Shri B.Sivaguru Rs. 50,000/- (Rupees Fifty Thousand Only) on Smt.T.Chandra Rs. 25,000/- (Rupees Twenty Five Thousand Only) on Shri B.Durai Rs. 25,000/- (Rupees Twenty Five Thousand Only) on Shri S.Thiyagarajan and Rs. 35,000/- (Rupees Thirty Five Thousand Only) on Shri N.Suresh, under Section 112(a) and iv. I order for Personal Penalty of Rs. 2,25,000/- (Rupees Two Lakhs Twenty Five Thousand Only) on Shri P.S.Ranganathan Rs. 40,000/- (Rupees Forty Thousand Only) on Smt.Sivaguru Sumathi Rs. 10,000/- (Rupees Ten Thousand Only) on Shri T.C.Venkatesan Rs. 30,000/- (Rupees Thirty Thousand Only) on Shri N.Kaliyamoorthy Rs. 30,000/- (Rupees Thirty Thousand Only) on Shri R.Somasundaram Rs. 15,000/- (Rupees Fifty Thousand) on Shri N.Ramesh Rs....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oubt that the gold brought by noneligible persons without fulfilling required conditions becomes prohibited. The Hon'ble High Court of Madras, in the case of Commissioner of Customs (Air), Chennai-1 vs. P.Sinnasamy reported in 2016 (344) E.L.T. 1154 (Mad.), relying on the judgment of the Apex Court in the case of Om Prakash Bhatia vs. Commissioner of Customs, Delhi reported in 2003 (155) E.L.T. 423(S.C.), has held that "if there is any prohibition of import or export of goods under the Act or any other law for the time being in force, it would be considered to be prohibited goods; and (b) this would not include any such goods in respect of which the conditions, subject to which the goods are imported or exported, have been complied with. This would mean that if the conditions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods..... Hence, prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If conditions are not fulfilled, it may amount to prohibited goods." It is thus clear that gold, may not be one of the enumerated goods, as pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l, 2009 (241) E.L.T. 182 (Cal.); xi. Horizon Ferro Alloys Pvt. Ltd. vs. Union of India, 2016 (340) E.L.T. 27 (P & H); xii. Commissioner of Customs (AIR), Chennai-I vs. P.Sinnasamy, 2016 (344) E.L.T. 1154 (Mad.); xiii. In RE: Ashok Kumar Verma, 2019 (369) E.L.T. 1677 (G.O.I.); xiv. Director of Revenue Intelligence vs. Pushpa Lekhumal Tolani, 2017 (353) E.L.T. 129 (S.C.); xv. Rayavarapu Sri Devi vs. The Principal Commissioner of Customs (Adjudication-Air), Chennai - 600 027, W.P.No.6734 of 2022 dated 19.02.2024; xvi. Smt.G.K.Shanmuga Priya vs. The Principal Commissioner & Ex-Officio, Mumbai - 400 005, W.P.(MD).No.198 of 2020 dated 27.01.2023. 18. Learned counsel for the petitioners has also placed reliance on the following orders passed by the Revisional Authority, Mumbai, Order of CESTAT, New Delhi, Order of CESTAT, Mumbai, the Customs, Excise and Service Tax Appellate Tribunal, New Delhi:- i. Order No.17/2017-Cus. (SZ/ASRA/Mumbai) dated 14.12.2017. ii. Dinker Khindria Vs. Commissioner of Customs, New Delhi, 2009 (237) E.L.T. 41 (Tri.-Del.). iii. Yakub Ibrahim Yusuf Vs. Commissioner of Customs, Mumba....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mber and weight expressed in metric units, and gold coins having gold content not below 99.5%, imported by the eligible passenger. ii. Gold in any form other than, i. including tola bars and ornaments, but excluding ornaments studded with stones or pearls. 25. Sl.No.321 to the above notification deals with import of goods by "eligible passenger" amended in view of the amendment to the above Notification vide M.F.(D.R.) Corrigendum F.No.334/1/2012-TRU dated 20.03.2012. 26. Thus, Sl.No.321 to Notification No.12/2012-Customs dated 17.03.2012 is applicable to gold in any other form including tola bars and ornaments. Sl.No.321 to Notification No.12/2012-Customs dated 17.03.2012 however would include only ornaments studded with stones or pearls. 27. A perusal of the above notification indicates that the above exemption is applicable only to an "eligible passenger" as defined in the said notification. The expression "eligible passenger" has been defined in Condition No.35 to Annexure to Notification No.12/2012-Customs dated 17.03.2012 [General Exemption No.165 in the Customs Manual]. It reads as under:- "For the purposes of this notification, "eligible ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ds as under:- "Column (2) i. Jewellery upto an aggregate value of Rs. 10,000/- by a gentleman passenger, or ii. Upto an aggregate value of Rs. 20,000/- by a lady passenger." 34. As far as passengers returning from countries other than Nepal, Bhutan, Myanmar, China is concerned, the requirement is specified in Rule 3 of the Baggage Rules, 1998. Appendix A is reproduced below:- Articles allowed free of duty (1) (2) (a) All passengers of an above 10 years of age and returning after a stay abroad of more than three days. i. Used personal effects, excluding jewellery, required for satisfying daily necessities of life. ii. Articles other than those mentioned in Annex.I up to a value of Rs. 25,000/- if these are carried on the person or in the accompanied baggage of the passenger. (b) All passengers of and above 10 years of age and returning after a stay abroad of three days or less. i. Used personal effects, excluding jewellery, required for satisfying daily necessities of life. ii. Articles other than those mentioned in Annex.I up to a value of Rs. 12,000/- if these are carried on the person or in the accompanied baggage....