R. Jayaraman, Member (T)

1. This is an appeal against the Order-in-Original No. SD/INT/AIU/127/91 APA/99/S/14-5-150/91 AA dated 24.12.1991.

In the aforesaid order, passed by the Additional Collector of Customs, he has ordered absolute confiscation of 165 gold bars and 4 gold bricks weighing 23239 gms valued at Rs. 51.13 lakhs (approximately) at International price and imposed a penalty of Rs. 5 lakhs on the appellant.

2. The facts, which are not disputed by both the sides can be summed up as below:

(i) Acting on a specific information that the appellant who was a passenger travelling in the Cathay Pacific flight from Dubai to Malaysia and occupying seat No. 234 was carrying a large quantity of gold, the officers of the Air Intelligence Unit of Bombay Sahar Airport Customs, boarded the aircraft on arrival from Dubai. They questioned the appellant, who was occupying the seat No. 234. On questioning, the appellant gave out name, produced his Malaysian passport and Air ticket showing routing as Penang-Kulalumpur-Dubai-Bangkok-Penang. The appellant admitted that he possessed 23 kgs of gold in his brief case, which he had not declared to the Pilot of the Aircraft. Thereupon the appellant was off-loaded from the Aircraft along with the brief case carried by him and as a result of search of the brief case, the aforesaid gold was seized. The appellant also produced documents from Dubai bullion dealers issued'in the name of the appellant and the company he was associated with in respect of the gold recovered from his possession.

(ii) The cargo manifest however did not show that gold was being taken as some bottom cargo from Dubai to Penang. There is no declaration of gold in the manifest filed by the Airlines to the Customs Department.

(iii) In the very first statement, given by the appellant he has indicated that he is a Malaysian doing goldsmith business at Singapore in the name and style of Tuichenoy Project at Penang. He travelled to Dubai for procuring gold bars for making jewellery at Malaysia and selling the ornaments in Dubai for making profit. He took with him 3133.80 gms of gold jewellery of 22 carats on 27.3.1991. However, he declared 36.5 kgs in the Export declaration submitted to Malaysian Customs in order to save income tax. The jewellery which he carried to Dubai was made out of gold purchased by him from the Standard Chartered The Chownkaid banks, both of which are. in Penang. After reaching Dubai, he sold the jewellery to the gold dealers in Dubai (details of sale to each also given by him in the statement) and acquired the gold bars and 4 gold bricks (details of acquisition from each dealer in Dubai also given in the statement) in respect of which vouchers were produced by him. He also stated that he informed the Air-hostess about gold being carried by him. However, he did not inform her that one of the certificates issued from Mada Jewellers, Dubai for 23 kgs of gold in his name was a false one and he got it issued in order to facilitate the clearance at Dubai Customs and Malaysian Customs and denied that the any part of the gold was meant for landing at Bombay.

(iv) The Air hostess, in her statement, confirmed that the appellant had told her that he was carrying some gold but she took it to be gold jewellery of his daily use. The Captain Pilot confirmed that no declaration of gold was made to him by any passenger for inclusion in the manifest.

(v) In the light of the above factual position, it has been alleged by the Department that the gold has been imported into India by the appellant without a Reserve Bank permit and the same was not figuring in the Import manifest as transit cargo meant for Penang and hence adjudication proceedings were initiated by the Additional Collector, resulting in the passing of the impugned order.

(vi) It is also confirmed that prosecution proceedings initiated against the appellant have been withdrawn by the Department, based on the instructions from the Ministry.

3. In the context of the a