The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) ordered absolute confiscation as there was attempt to smuggle gold of foreign origin without payment of customs duty.
The recovered gold was seized under different seizure memos under Section 110 of the Customs Act, 1962 on the reasonable belief that the same were liable to be confiscated under Section 111 of the Customs Act, 1962. The original adjudicating authority passed the impugned Order-inOriginal No. 25-ADJ-2020 dated 16.02.2020 holding that Rakesh Luthra, Sunita Luthra, Sonia Luthra and Mamik Luthra were not eligible passengers to import gold.
The counsel for the appellant submitted that the said demand of customs duty under Section 28 of Customs Act, 1962 is based on the extracted statement of the appellant. It is settled law that unless the statement is corroborated by any other evidence, the same cannot be admitted as evidence.
The counsel contended that there is nothing in the impugned order or the show cause notice dated 19/20.11.2019 to show that the appellant Sunita Luthra had herself brought 2000 gms of gold apart from 1965.4 gms allegedly brought by her husband Rakesh Luthra. The statement has been mis-interpreted by the Commissioner to hold the appellant had herself brought gold in the past.
The Authorised Representative submitted that the claim of the appellants is without any merit. As per Baggage Rules, 2016, on arrival at an international airport in India, passengers should proceed to Red channel and make a declaration to the customs officers in case they carry any prohibited/controlled items or any dutiable commodities. Passengers with bonafide baggage, as permissible under Baggage Rules, 2016, can opt for exit through the Green Channel.
The Authorised Representative further stated that import of „Gold‟ is permissible for the „eligible‟ passenger subject to fulfilment of condition 41 of Notification No. 50/2017-Cus dated 30.06.2017, as amended vide Notification No. 25/2019-Cus dated 06.07.2019, that includes the conditionality of stay abroad ( with permissible short visits ). However, in the instant case, the appellants were frequent fliers and had visited India almost every month. Consequently, they did not satisfy the condition of being an „eligible passenger‟.
A Two-Member Bench comprising Dr Rachna Gupta, Judicial Member and Hemambika R Priya, Technical Member observed that “As per the facts of the case, the seizure of gold from the appellants, as recorded in the panchnama and admitted in their respective statements is undisputed. It is also established that the gold was of foreign origin. It is also established that the appellants were attempting to smuggle the gold without payment of duty. We also note that legal import of gold is governed by certain conditions which the appellant do not fulfil. Therefore, we are of the considered opinion that the gold recovered from the appellants is liable for absolute confiscation.”
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