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2020 ] INDEX - 1st June, 2020 xi
Confiscation (Contd.)
personal hearing - No useful purpose to be served by allowing cross-
examination at this stage when same already considered and denied by
both adjudicating authority as well as Commissioner (Appeals) - Request
for cross-examination was to denied - 8 kgs gold brought by passenger
instead of 1 Kg permitted under Notification No. 12/2012-Cus. -
Passenger, a NRI and residing in Dubai for last 15 years cannot take an
alibi that he was not aware of provisions regarding import of gold by
NRIs - Passenger had smuggled gold and did not declare them at red
channel counter with an intention to evade Customs duty - Contention
that passenger was carrying 1,05,410 Dirham for payment of duty in
convertible foreign currency on impugned goods baseless - Instruction
vide C.B.E. & C. Instruction F. No. 495/5/92-Cus.-VI, dated 10-5-1993
clearly providing that in respect of gold seized for non-declaration, no
option to redeem same on redemption fine should be given -
Confiscation of gold bars without redemption legally sustainable -
Condition mentioned in Section 80 of Customs Act, 1962 not fulfilled -
Re-export of seized gold cannot be allowed - Penalty imposed under
Section 112 ibid upheld - Sections 77, 80, 108, 111, 112, 114 and 125 of
Customs Act, 1962 — In Re : Manoj Kumar Sharma (G.O.I.) .............. 750
— and penalty - Seizure of forex and Indian currency along with concealed
gold bars - Failure by passenger carrying to declare currency in red
channel - No foreign currency can be sent out of India or brought into the
country without permission of Reserve Bank of India - Forex (UAE
Dirham 1,05,410) carried by passenger was much higher than prescribed
limit under Foreign Exchange Management Act, 1999 read with Foreign
Exchange Management (Export and Import of Currency) Regulations,
2000 - An attempt to smuggle foreign currency and Indian currency
‘prohibited’ and merits confiscation - Said currency fell under category of
“prohibited goods” - Currencies correctly confiscated - Keeping in view
of gravity of offence order of Commissioner (Appeals) in reducing
penalty under Section 112 of Customs Act, 1962 from ` 30 lacs to ` 5 lacs
erroneous and set aside - Not case for imposition of penalty under
Section 114AA ibid and order of Commissioner (Appeals) waiving
penalty under said Section upheld - Order-in-Appeal in releasing DD
amounting to ` 12 lac meant for deposit in NRE Account and Indian
currency amounting to ` 12,500 upheld - Sections 2(33), 111(d), 111(m),
111(o) and 112 of Customs Act, 1962 — In Re : Manoj Kumar Sharma (G.O.I.) .... 750
— 11 gold biscuits seized from assessee - Burden on assessee to how he
obtained such goods - Adverse inference to be drawn on failure to
discharge the burden - 1283g of gold recovered from assessee not
attributable to 1166g of gold that had been purchased by him - No
explanation as to how he came to be in possession of the gold that was
found on his person - Failure by assessee to discharge his burden - Order
passed by adjudicating authority and order passed by Tribunal cannot be
faulted - When findings of fact rendered by competent bodies having
jurisdiction to enquire into such facts to be scarcely interfered with in
exercise of the power of judicial review unless they appear to be perverse
on the face of it - Single Bench picked stray line from order of Tribunal to
find it to be without basis - Not evident immediately as to whether the
import or export of gold was prohibited in the year 1994, contention that
since import or export of gold not prohibited at time of seizure,

EXCISE LAW TIMES  1st June 2020  13