TaxTMI 
TaxTMI 
2026 (7) TMI 1293
X X X X Extracts X X X X
X X X X Extracts X X X X
....[hereinafter referred to as the "appellant"] arrived at the Netaji Subhas Chandra Bose International Airport, Kolkata on 31.08.2017 from Bangkok by Flight No. FD-120. After collecting his baggage, while proceeding towards the exit through the Green Channel, he was intercepted by the officers of the Air Intelligence Unit (AIU). Upon being questioned, the appellant is stated to have denied carrying any dutiable goods or gold, either in his baggage or on his person. Since the officers were not satisfied with the response, the baggage viz. one chocolate coloured leather hand bag, carried by the appellant was subjected to X-ray screening, whereupon certain yellow-coloured metallic objects were discovered. The appellant was thereafter directed to pass through the Door Frame Metal Detector, which also indicated the presence of metallic objects on his person. Consequently, the appellant, along with his baggage, was taken to the AIU office for detailed examination. 3. Upon personal search conducted in the presence of independent witnesses, two gold bangles were recovered from a hand bag carried by the appellant, while one gold chain was found worn around his neck underneath his shirt. Th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons 112(a), 112(b) and 114AA of the Act. 5.1. The proceedings culminated in the passing of the aforesaid Order-in-Original dated 12.02.2019, whereby the adjudicating authority ordered absolute confiscation of the seized gold ornaments and imposed a penalty of Rs.6,00,000/- upon the appellant under the above said Sections. 5.2. The appeal preferred thereagainst came to be dismissed by the Ld. Commissioner of Customs (Appeals), Custom House, kolkata vide the impugned Order-in-Appeal dated 09.12.2020, affirming the Order-in-Original dated 12.02.2019 passed by the adjudicating authority. 5.3. Aggrieved thereby, the appellant is before this Tribunal. 6. The Ld. Counsel appearing on behalf of the appellant submitted that the challenge in the present appeal has principally been confined to the question of the nature of confiscation ordered by the authorities below and the quantum of penalty imposed upon the appellant. It was contended that, although the confiscation of the impugned gold ornaments has not been seriously disputed, the authorities below were not justified in directing absolute confiscation, inasmuch as the appellant ought to have been afforded an opportunity to r....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... on the ratio of the following decisions: - i. Nidhi Kapoor v. Principal Commissioner and Additional Secretary to The Government of India in WP(C) No.8902 of 2021 and C.M Appl.No. 28834 of 2021 decided on 21.08.2023 - Delhi High Court; ii. Rameshwar Tiwari c. Union Of India in W.P. (C) No. 9273 of 2021 and C.M. Appl. No. 28834 of 2021, decided on 20-3-2024. 7.1. He accordingly prayed for dismissal of the appeal and for affirmation of the impugned order in toto. 8. Heard both sides and perused the records of the case. 9. Having considered the rival contentions, I observe that the issue in the present appeal lies in a narrow compass. The appellant has not seriously assailed the finding of confiscability of the impugned gold ornaments, the principal grievance being confined to the nature of confiscation ordered by the authorities below and the quantum of penalty imposed. 9.1. Be that as it may, I find it pertinent to note that the Chemical Laboratory, Custom House, Kolkata, vide its report dated 12.09.2017, has certified the impugned ornaments to possess a purity of 99.6% by weight of gold. The record further reveals that the appellant was unable to produ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to hold that the contravention committed by the appellant appears to be the result of a bona fide misconception regarding the permissibility of carrying the impugned ornaments as baggage, rather than a deliberate or organised attempt to clandestinely smuggle the same into India. The circumstances surrounding the recovery also lend support to such inference. Significantly, one of the impugned ornaments, namely the gold chain, was admittedly being worn by the appellant around his neck, while the remaining two gold bangles were kept in his handbag. Though such conduct cannot absolve the appellant of the statutory obligation to make a proper declaration before the Customs authorities, it nevertheless constitutes a relevant circumstance while evaluating the nature and gravity of the offence alleged against him. The manner of carriage, viewed in conjunction with the attendant facts, does not indicate the existence of a carefully designed modus operandi ordinarily associated with organised smuggling activities. 11. At the same time, it requires to be emphasised at this juncture that the aforesaid circumstances do not in any manner dilute the confiscability of the impugned goods, which....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... on perusal of record 1 find that any passenger provided under section 77 of Customs Act, 1962. Further if it is found that the goods accompanying entering into India is required to make a declaration of his baggage before entering into India as him which are also called as baggage, import of which is prohibited and in respect of which true declaration has been made under section 77 the proper officer may at the request of the passenger Customs Act, 1962. The revenue alleged that in the present case appellant signed the declaration but detain such articles for the purpose of being returned to him on his leaving India under section 80 put not mentioned any goods in declaration. I have gone through the said disputed form and found that neither appellant mentioned the detail YES nor mention details as NO in the said declaration form. Appellant simply signed the declaration form and handover to the officers at Airport. However, the said option was not exercised and officers seized the goods and detained the passenger. In the instant case, the passenger is neither a habitual offender nor carrying the said goods for smuggling purpose. In this circumstance the Order of the Ld. Commissione....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Elavarasan v. Commissioner of Customs (Airport), Chennai 2011 (266) E.L.T. 167 (Mad.), the Hon'ble High Court held that gold is not a prohibited item and option is available to owner of goods or person from whom goods seized, to pay fine in lieu of confiscation. In Union of India v. Dhanak M. Ramji 2009 (248) E.L.T. 127 (Bom.) affirmed vide 2010 (252) E.L.T. A102 (S C.) it was held that gold is not a prohibited item and discretion of redemption can be exercised to the person from whom it was recovered. In A. Rajkumari v. CC (Chennai) - 2015 (321) E.L.T. 540 (Tri-Chennai) the redemption of 70 gold bars brought by concealing in air conditioner was allowed and fine was reduced to 14%. In Kader Mydeen v. Commissioner of Customs (Preventive), West Bengal 2001 (136) E.L.T. 758 it was held that in view of the liberalised gold policy of the Government, absolute confiscation is unwarranted and redemption can be allowed. In Sapna Sanjeev Kohli v. Commissioner of Customs, Airport, Mumbai 2008 (230) E.L.T. 305 the Tribunal observed that the frequent traveller was aware of rules and regulations and absolute confiscation of gold jewellery not warranted which may be cleared on payment of rede....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eign currency has been confiscated, which provides for confiscation of improperly imported goods. Thus, unless the improper importation is proved with evidence, the said section is not applicable, there is no evidence on record to prove that the impugned foreign currency was improperly imported. Mere improper procurement, if at all, in contravention of FEMA, will not attract Section 111 of the said Act. Hon'ble Tribunal in the case of CC v. L. Rajkumar, reported at 2014 (312) E.L.T. 99 (Tri.-Chennai), in para 15, has held as under:- "The above section [f.e. Section 111(d)) makes it amply clear that the goods are liable to confiscation under Customs Act if the goods are imported or attempted to be imported contrary to any prohibition under Customs Act or under any other law for the time being in force. So the prohibition imposed under Customs Act or any other law for the time being in force referred therein has to be a prohibition on import. The prohibition in FEMA on trading and possession of foreign currency will not come within the scope of Section 111(d) because this section deals with import and prohibition on import and no other prohibition..." 10. There ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ded to release the said gold on payment of redemption fine in terms of Section 125 of Customs Act, 1962. The gold was absolutely confiscated relying on the judgment of Hon'ble High Court of Madras in the case of CC (Air), Chennai v. Samynathan Murugesan 2009 (247) Ε.Ε.Τ. 21 (Mad.). In the said cited case the passenger had imported 7.075 kgs of gold ornaments which were concealed inside the Television set to avoid detection by Customs. In the absence of intelligence gathered by Customs, passenger would have got cleared the jewellery with the T.V. The concealment in the said manner by adopting this unique modus operandi had weighed in the mind of the adjudicating authority for ordering absolute confiscation which was upheld by Hon'ble High Court. But in this case the gold was not concealed in any ingenious manner and therefore facts of both the cases are different. As such ratio of said judgment is not squarely applicable to this case. 8.2 Applicant has pleaded for allowing redemption of gold under Section 125 ibid. In this regard case is to be decided in view of the judgment of Hon'ble High Court of Madras dated 1-4-2008 in writ appeal Nos. 1488,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l Secretary to the Government of India (Delhi High Court, decided on 21.08.2023) (supra) and Rameshwar Tiwari v. Union of India (Delhi High Court, decided on 20.03.2024) (supra). However, I find that the said decisions are clearly distinguishable on facts and do not advance the case of the Revenue. In both the aforesaid matters, (a) the goods involved were predominantly gold bars, cut pieces or other forms of primary gold and further (b) were collectively weighing approximately 3100 grams and 3203.900 grams, respectively, thereby unmistakably exhibiting the character of commercial quantity. The present case, on the other hand, concerns two gold bangles and one gold chain, collectively weighing 418.000 grams, which are finished gold ornaments and not primary gold in the nature of bars or bullion. It is equally significant that one of the seized articles, namely the gold chain, was being worn by the appellant around his neck at the time of interception, lending support to the appellant's plea regarding the personal character of the articles. It is no doubt well settled that cases involving importation of gold in commercial quantity, particularly in the form o....