Foreign nationals are not entitled to import gold into India under the Foreign Trade (Exemption From Application of Rules in certain cases) Order, 1993, and attempts to do so constitute smuggling under the Customs Act, 1933.

1. This Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records on the file of the third respondent made in 373/60/B/2001-RA and by order No.11 of 2002 dated 28.01.2002, confirming the orders of the first respondent dated 3.1.2001 and the second respondent dated 3.4.2001, quash the same and direct the respondents to release the 10 Nos. of gold bars weighing 1165 grams valued at Rs.4,78,081.00 to the petitioner being the subject matter of the Order O.S.No.254 of 2000-INT dated 03.01.2001 on the file of the first respondent.

2. On 11.12.2000, the officers of Anna International Airport, Chennai, while maintaining surveillance over the passengers and their baggages arrived by Indian Airlines flight IC574 from Colombo, intercepted a passenger by name Shri S.Aiyakannu, holder of Srilankan Passport No.M0444299 dated 7.12.1998 issued at Colombo. While the petitioner/passenger was at the green channel, the officers on suspicion and on reasonable belief that the passenger was trying to clear dutiable goods without declaration and payment of duty stopped him at the said place and verified the baggage. The petitioner/ passenger stated that he had no dutiable goods to declare. After the said statement, the baggage was checked and in the baggage it was found concealed 10 gold bars with foreign markings wrapped in carbon paper each weighing 10 tolas. The 10 gold bars totally weighing 1165 grams valued at Rs.4,78,081/-were seized as per the procedure along with other documents and a statement was recorded on the same day wherein the petitioner inter alia stated that he brought the gold from Colombo to sell it for profit in India so as to meet the educational expenses of his children studying in India at Chennai. Petitioner accepted the offence and pleaded for leniency. Petitioner, by letter dated 2.1.2001 pleaded for waiver of show cause notice and prayed for personal hearing, which was held on 3.1.2001 and the petitioner appeared in person. The Joint Commissioner of Customs referring to clause 3 of Foreign Trade (Exemption from application of rules in certain cases) Order, 1993 issued from Foreign Trade (Development & Regulation) Act, 1992 came to the conclusion that import of gold in any form including ornaments will be allowed as part of baggage by a passenger of Indian origin or a passenger holding a valid passport issued under the Passport Act, 1967, subject to certain eligibility conditions. Since the petitioner is a Srilankan Passport Holder, he is not entitled to bring gold into India. Further, the gold in question was not declared to the Customs on arrival. Therefore, there was an attempt to smuggle the same into India by way of concealing it inside the zip bag covered with black colour adhesive carbon tapes. The adjudicating authority came to the conclusion that the gold bars so imported are liable for confiscation under section 111(d), (l) and (m) of the Customs Act, 1962. Accordingly, for the aforesaid reasons, he held that the 10 numbers of gold bars weighing 1165 grams valued at Rs.4,78,081/- are liable for absolute confiscation and accordingly ordered absolute confiscation and imposed a penalty of Rs.24,000/- under Section 112(a) of the Customs Act, 1962. This order was passed in O.S.No.254 of 2000 INT dated 3.1.2001.

3. An appeal was filed by the petitioner to the Commissioner of Customs (Appeals) stating that gold was brought for the use of petitioner daughter's marriage and redemption should have been given under Section 125 of the Customs Act in terms of the various decisions of the CEGAT, Government of India and the High Court. The authority failed to grant redemption of gold and imposed penalty erroneously. The Commissioner of Customs (Appeals) after hearing the counsel for the appellant (writ petitioner) came to the conclusion that it was a case of proved concealment and attempt to smuggle gold into India. The appellant (writ petitioner) is a Srilankan National and