Page 225 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] IN RE : MANOJ KUMAR SHARMA 759

It is observed that C.B.I. & C. had issued instruction vide letter F. No.
495/5/ 92-Cus.-VI, dated 10-5-1993 wherein it has been instructed that “in respect
of gold seized for non-declaration, no option to redeem the same on redemption fine under
Section 125 of the Customs Act, 1962 should be given except in very trivial cases where
the adjudication authority is satisfied that there was no concealment of the gold in ques-
tion”.
Andhra Pradesh High Court in its order in the case of Shaikh Jamal Basha
v. G.O.I. [1997 (91) E.L.T. 277 (A.P.)] has held as follows :
“Attempt to import gold unauthorisedly will thus come under the second
part of Section 125(1) of the Act where the adjudging officer is under man-
datory duty to give option to the person found guilty to pay (fine) in lieu of
confiscation. Section 125 of the Act leaves option to the officer to grant the
benefit or not so far as goods whose import is prohibited but no such option
is available in respect of goods which can be imported, but because of the
method of importation adopted, become liable for confiscation.”
Therefore the decision of the lower authorities in confiscating the impugned gold
bars under Section 111 of Customs Act, 1962 without redemption is legally sus-
tainable and upheld.
13. Section 80 of Customs Act, 1962 reads as follows :
“80. Temporary detention of baggage. — Where the baggage of a pas-
senger contains any article which is dutiable or the import of which is pro-
hibited and in respect of which a true declaration has been made under Sec-
tion 77, the proper officer may, at the request of the passenger, detain such
article for the purpose of being returned to him on his leaving India and if
for any reason, the passenger is not able to collect the article at the time of
his leaving India, the article may be returned to him through any other pas-
senger authorised by him and leaving India or as cargo consigned in his
name.”
Section 80 of the Customs Act, 1962 provides that the detained imported goods
can be re-exported on the request of the passenger where he/she is returning
from India to a foreign country. Hence apart from declaration of the prohibited
goods at the time of arrival of passenger, return of the passenger to the foreign
country after a short visit to India as a tourist or otherwise is a crucial condition
for re-export of impugned goods. It is observed that the PAX concealed im-
pugned gold bars on his arrival at Jaipur Airport with an intention to evade cus-
toms duty. A pre-condition to allow re-export under Section 80 of Customs Act,
1962 is that “a true declaration has been made under Section 77”, which is not the
case here.
As the conditions stipulated under Section 80 of Customs Act, 1962 do
not get fulfilled in the subject case re-export of the impugned gold bars cannot be
allowed to the PAX under Section 80 of Customs Act, 1962 and is denied.
14. The seizure of forex currency and Indian currency has also been af-
fected in the present case. Section 2(22) of Customs Act, 1962 defines goods as :
“goods” includes -
(a) vessels, aircrafts and vehicles;
(b) stores;
(c) baggage;
EXCISE LAW TIMES  1st June 2020  225