Muhammed Rafi Kuruthilakath Lafarkantavida vs C.C, Cochin-Cus

The present appeal is directed against the impugned order dt. 26/05/2020 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has rejected the appeal upholding the Order-in-Original.

Briefly the facts of the present case are that the officers of Air Intelligence Unit, Cochin International Airport, Nedumbassery seized two gold biscuits total weighing 120 grams valued at Rs.3,55,680/- (international value) from the appellant on his arrival from Sharjah to Cochin on 20/09/2018. The gold biscuits were concealed inside the inner garment worn by the appellant. Since the seized gold biscuits were undeclared, the original authority vide his order dt. 16/01/2019 confiscated the same absolutely under Section 111(d), (i), (l) and (m) of the Customs Act, 1962 and also imposed penalty of Rs.10,000/- under Section 112(a) and (b) of the Customs Act, 1962. Aggrieved by the said order, the appellant filed appeal before the Commissioner(Appeals) who rejected the same. Hence the present appeal.

Heard both sides and perused the records.

Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the appellant was ignorant of the law that gold ornaments brought from abroad must be reported to the Customs authorities and he was also ignorant that he is required to pass through the red channel and without knowing these facts, the appellant passed through green channel. He further submitted that the quantity of gold brought was only 120 grams which was purchased by him from Malabar Gold and Diamonds, Bahrain with proper bill and the said purchase was purely for making ornaments for his family. He also submitted that appellant was not an agent of any person and the said gold was not for sale. He also submitted that appellant was never involved in any such cases earlier though he has been frequently travelling to Bahrain as shown in his Passport. He also prayed that a lenient view should be taken and gold should be released to the appellant.

On the other hand, the learned AR defended the impugned order and submitted that the appellant was not entitled to bring gold from outside India as the duration of his stay in abroad was only 35 days; therefore he was not eligible for import of gold in terms of Notification No.12/2012 Cus dt. 17/03/2012. She further submitted that the appellant has been frequently travelling abroad in connection with his work and he is presumed to know the Customs rules and procedures. She further submitted that gold recovered was not declared to the Customs which amounts to violation of Section 77 of the Customs Act, 1962 read with Baggage Rules, 1998 and relevant policy provisions which renders the gold liable for confiscation.

After considering the submissions of both the parties and perusal of the material on record, I find that the appellant was carrying two gold biscuits weighing 120 grams valued at Rs.3,55,680/- which was concealed inside the inner garments by the appellant and the same was not declared and the appellant passed through green channel so as to avoid payment of customs duty. Further I find that as per Notification NO.12/2012-Cus dt. 17/03/2012, appellant was not entitled to bring the gold from abroad as his stay in foreign country was only 35 days. Though in the impugned order, Commissioner(Appeals) has noted that appellant has not been able to prove his ownership on the impugned goods as the appellant has produced a photocopy of the bill as proof of his purchase which is not sufficient. Before this Tribunal, appellant has produced the original copy of the invoice issued by Malabar Gold and Diamonds and the said bill shows that the appellant is the owner of the gold which was purchased by him only 2-3 days before the start of the journey from Bahrain. But since he was not eligible to bring gold in terms of Notification No.12/2012 and the same was not declared, the impugned goods have rightly been confiscated and I uphold the order of confiscation. But as far as penalty of Rs.10,000/- imposed on the appellant under Section 112(a) and (b) of the Customs Act, considering the facts and circumstances of the case specifically when the appellant has proved his ownership, I hold that imposition of penalty is not justified and therefore I set aside the penalty of Rs.10,000/- imposed on the appellant. Accordingly, appeal is partly allowed in above terms.

(Order was pronounced in Open Court on 06/08/2021)