Page 224 - ELT_1st June 2020_VOL 372_Part 5th

758 EXCISE LAW TIMES [ Vol. 372

Hon’ble High Court of Calcutta in the case of Provash Kumar Dey v. In-
spector of Central Excise and Others [1987 (31) E.L.T. 13 (Cal.)] has held that igno-
rance of law is no excuse and accordingly the petitioner was rightly found guilty for con-
travention of Rule 32(2) [1993 (64) E.L.T. 23 (Del.)].
It was duty of the PAX to ascertain the correct position of law before
smuggling 8 kg of gold in bar form. The PAX is a NRI and residing in Dubai for
the last 15 years. He cannot take an alibi that he was not aware of provisions re-
garding import of gold by NRIs under Customs Act, 1962 and other allied Acts.
11. Hon’ble Madras High Court in the case of Commissioner of Customs
(AIR) Chennai-I v. Samynathan Murugesan [2009 (247) E.L.T. 21 (Mad.)] relied on
the definition of ‘prohibited goods’ given by the Apex Court in case of Omprakash
Bhatia v. Commissioner of Customs, Delhi [2003 (155) E.L.T. 423 (S.C.)] and has also
held as under :-
“In view of meaning of the word “prohibition” as construed laid down by
the Supreme Court in Om Prakash Bhatia case we have to hold that the im-
ported gold was ‘prohibited goods’ since the respondent is not an eligible
passenger who did not satisfy the conditions”.
The Apex Court has upheld the order of Madras High Court and dismissed the
Special Leave to Appeal (Civil) No. 22072 of 2009 filed by Samynathan
Murugesan [2010 (254) E.L.T. A15 (S.C.)].
Reliance is placed on Madras High Court in the case of Commissioner of
Customs (AIR) Chennai-I v. Samynathan Murugesan [2009 (247) E.L.T. 21 (Mad.)],
wherein the Honourable High Court has considered that concealment as a rele-
vant factor meriting absolute confiscation. The Honourable High Court has held
as under : “In the present case too, the concealment had weighed with the Commissioner
to order absolute confiscation. He was right, the Tribunal erred.”
The Panchnama dated 23-9-2012 narrates the fact that the impugned gold
bars were not declared by PAX on his own and it was only on asking of customs
officer at the x-ray machine and at the red channel that the PAX declared 10 gold
biscuits weighing 10 tola each, which he took out from his spectacles case con-
taining two plastic packets (one containing 6 pieces and the other containing 4
pieces of gold bars). No declaration was given by the PAX for the balance 60 bis-
cuits either at the x-ray counter or at the red channel. They were recovered from
two cannon camera cases, which were placed inside the hand bag of PAX as per
seizure memo dated 23-9-2012. The concealment material has also been seized as
per the seizure memo dated 23-9-2012.
12. For the sake of repetition it is mentioned that PAX had submitted a
‘nil’ declaration form under Section 77 of Customs Act, 1962 on his arrival at the
red channel counter in gross violation of provisions of Customs Act, 1962 and he
was arrested under Section 104 of Customs Act, 1962 on 23-9-2012 for the same. It
is evident that the PAX smuggled the impugned gold bars and did not declare
them at red channel counter with an intention to evade customs duty. The PAX’s
alibi that he was carrying 1,05,410 Dirham for payment of duty in convertible
foreign currency on the impugned goods is baseless and merits no credence. The
PAX had made out a case of ignorance of law and vindication on part of the Cus-
toms authorities, Jaipur. However the facts of the case belie the baseless allegations of
the PAX and his innocence.
EXCISE LAW TIMES  1st June 2020  224