The Chennai Bench of Custom, Excise, Service Tax Appellate Tribunal (CESTAT) recently set aside the confiscation made by the Commissioner of Custom Sea on the ground that the jewellery imported was not prohibited, even if the permissible limit for importation of jewellery has been exceeded, it is unlawful to deny the option to redeem goods on payment of fine after confiscation.
The appellant, Ahmed Gani Natchai is a citizen of Malaysia and intends to return to her country of domicile. She was unable to carry into, and wear the gold jewellery in, India and it is her request that she should be allowed to carry it back with her on the return trip to Malaysia.
The Airport authorities confiscated 626 gms of gold jewellery, comprising of one gold chain and 10 gold bangles, valued at Rs.19,71,900/- under section 111(d) and 111(1) of Customs Act, 1962 and imposition of penalty of Rs.1,95,000/- under section 112(a) of Customs Act,1962, has been upheld while dropping the penalty imposed by the original authority under Section 114AA of Customs Act, 1962. And captioned as smuggled gold and bereft of any document or certificate. This was further confirmed by the Commissioner of Customs (Appeals).
The appellant claims that she is a regular visitor with family connections here and that she had, in the present instance, responded to an invitation to attend a wedding for which it is customary to wear jewellery. It is further claimed that the appellant is illiterate and is a senior citizen and the confusion of the legality, or permissibility, entertained by her was taken advantage of to obtain her consent for waiver of show-cause notice without comprehending the consequences.
The tribunal consisting of a Judicial Member P. Dinesha and a Technical Member C.J. Mathew set aside the confiscation made by the Commissioner of Custom Sea on the ground that the jewellery imported was not prohibited, even if the permissible limit for importation of jewellery has been exceeded, it is unlawful to deny the option to redeem goods on payment of fine after confiscation.
“On ascertainment of the records which are flimsy and bereft of any investigation and the existence of the mahazar alone as proof of the incident, we are constrained to note that concealment has not been established. Furthermore, there is no statement of anyone that could warrant the conclusion of deliberate intent to smuggle gold in any form. It is also seen that the proceedings have been based on the erroneous presumptions of the imported jewellery having been gold of ’24 carat’ purity which is practically not possible,” the tribunal noted.
Therefore, the tribunal concluded that the imposition of penalty of Rs.1,00,000/- would suffice to meet the ends of justice, and it was held that the impugned goods are not liable to duty as the same has not been cleared for home consumption. Accordingly, the appellant was directed to retrieve the gold jewellery and export it out of the country on complying with the penalty imposed by the order.