Rakesh Luthra Vs Commissioner of Customs (Airport & General) (CESTAT Delhi)
CESTAT Delhi held that attempt to smuggle gold by breaching the condition for import makes it a prohibited goods. Accordingly, such prohibited goods cannot be allowed to be redeemed on payment of redemption fine or cannot be permitted for re-export. Hence, such prohibited goods is liable for absolute confiscation.
Facts- Appellants arrived on 08.06.2019 at New Delhi by Air India Flight from Bangkok and walked through Green Channel and they all were intercepted near the exit gate of the Customs Arrival Hall. Post search, 5218 gms gold was recovered from the appellants. The recovered gold was seized under different seizure memos u/s. 110 of the Customs Act, 1962 on the reasonable belief that the same were liable to be confiscated u/s. 111 of the Customs Act, 1962.
The original adjudicating authority passed the impugned Order-in-Original holding that the appellants were not eligible passengers to import gold. Hence the imported gold was confiscated but allowed redemption of the same on payment of fine, penalty and duty at baggage rate. The adjudicating authority also permitted re-export of gold in respect of two appellants. The duty on gold said to be brought by them on their past visits was also confirmed.
Conclusion- Hon’ble Gujarat High Court in the case Bhargavraj Rameshkumar Mehta Vs. Union of India has held that attempt to smuggle by concealing the same, and breaching the condition for the import of such goods would make them „prohibited goods‟ in terms of Section 2(33) of the Customs Act, 1962. Once it is established that the goods are prohibited, then there cannot be an option for either redemption or re-export, and such goods are liable for absolute confiscation.
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.
FULL TEXT OF THE CESTAT DELHI ORDER
Shri Rakesh Luthra, Ms. Sunita Luthra, and Ms. Sonia Luthra (hereinafter referred to as the appellants) have filed the captioned appeals against the common Order-in-Original No. 25-ADJ-2020 dated 16.02.2020 passed by the Commissioner of Customs (Import & General), New Delhi wherein the gold recovered from them was allowed to be redeemed on payment of redemption fine or permitted for re-export and penalties were imposed on the three of the appellants. The Department has also filed appeals against the decision of the adjudicating authority to permit Rakesh Luthra to redeem the gold, and the permission to re-export gold given to Sonia and Mamik Luthra.
2. The brief facts of the case are that Shri Rakesh Luthra along with Ms. Sonia Luthra, Shri Mamik Luthra and Ms. Sunita Luthra (hereinafter referred collectively as „appellants‟) arrived on 08.06.2019 at T-3 IGI Airport, New Delhi by Air India Flight No. AI 335 from Bangkok and walked through Green Channel and they all were intercepted near the exit gate of Customs Arrival Hall. Shri Rakesh Luthra and Shri Mamik Luthra were carrying one hand bag only while Ms. Sonia Luthra and Ms. Sunita Luthra were carrying two hand bags each. All the said four persons were asked whether they were carrying any dutiable goods or gold to which they replied in the negative. They were diverted for scanning of their baggage through the X-Ray machine and nothing objectionable was noticed in their baggage. All the said four persons were made to pass through Door Frame Metal Detector installed in the arrival hall, wherein strong and long sound was heard when Shri Rakesh Luthra, Ms. Sonia Luthra and Shri Mamik Luthra walked through the metal detector. No sound was heard when Ms. Sunita Luthra passed through. Thereafter, personal search of Shri Rakesh Luthra and others was conducted in the Customs Preventive Room in the presence of two witnesses. The searches resulted in the recovery of the items from the appellants as indicated hereinafter.
2.1 Personal search of Shri Rakesh Luthra resulted in:
(1) 03 (three) pieces of yellow metal bars weighing 1000 gms each and one piece of Yellow metal weighing 225 gms appearing to be gold, total weighing 3225 gms.
(2) Boarding pass of Air India Flight No. AI 335 dated 07.06.2019.
(3) One used I phone XS phone having Vodafone SIM No. 9814465658.
(4) Indian Passport No. SO377792 issued on 07.03.2018 at Chandigarh.
(5) Indian currency Rs. 12,500/- and Thai Bhatt 1120, USD 1000.
2.2 Personal search of Ms. Sonia Luthra resulted in:
(1) 01 (one) cut piece of Yellow metal bar appearing to be gold total weighing 900 gms.
(2) Boarding Pass of Air India Flight No. AI 335 dated 08.06.2019.
(3) One used iPhone 6 phone having Airtel SIM No. 9876121757.
(4) Indian Passport No. L237766 issued on 30.09.2015 at Toronto.
(5) Indian currency Rs. 9,100/- and Thai Bhatt 190, USD 700, CAD 225, UAE DIRHAM 1020.
2.3 Personal search of Shri Mamik Luthra revealed:
(1) 01 (one) cut piece of yellow metal bar appearing to be gold total weighing 1000 gms.
(2) Boarding Pass of Air India Flight No. AI 335 dated 08.06.2019.
(3) One used iPhone 8 phone having traveller SIM (as informed by Noticee-3).
(4) Canada Passport No. AA223049 issued on 06.06.2017 at Canada.
2.4 Personal search of Ms. Sunita Luthra resulted in:
(1) Boarding Pass of Air India Flight No. AI 335 dated 08.06.2019.
(2) One used Samsung phone having JIO SIM No. 7087493675.
(3) Indian Passport No. SO385480 issued on 07.03.2018 at Chandigarh.
3. Consequent to the personal search, the weight, value and purity of the recovered five pieces of yellow bars was appraised, and the jewellery appraiser submitted his report dated 08.06.2019 as reproduced in the table below:
