Failure to declare gold jewellery upon import constitutes smuggling, rendering it 'prohibited' under the Customs Act, but absolute confiscation without redemption is excessive.

ORDER :

The petitioner is before this Court against the Impugned Order No.17-18-19/2021-Cus.(SZ)/ASRA/Mumbai dated 27.01.2021 made in F.No.373/214A,B,C/B/16-RA/1035 passed by the fourth respondent under Section 129DD of the Customs Act, 1962 .

2. The petitioner is aggrieved by Impugned Order No.17 in respect of order of the third respondent in Order-in-Appeal C.Cus-I Nos.263 to 265 of 2016 dated 27.06.2016 whereby, the order passed by the Additional Commissioner of Customs in Order-in-Original No.356/2015-2016-AIRPORT made in F.No.O.S.No.793/2015-AIR dated 23.11.2015 has been affirmed.

3. The petitioner flew from Dubai on 09.08.2015 along with two others namely Smt.Deepa Sathishkumar and Smt.Ekambaram Devi. As far as the petitioner is concerned, the petitioner was found wearing one gold chain and eight gold bangles totally weighing about 791 grams and valued at Rs.19,89,365/-.

4. The case of the Department is that the petitioner attempted to walk through the Green Channel without declaring the gold jewellery to the requirements of the Customs Act, 1962 and the rules and thus, by an Order dated 23.11.2015, the Additional Commissioner of Customs vide Order-in-Original No.356/2015-2016-AIRPORT made in F.No.O.S.No.793/2015-AIR, ordered absolute confiscation of the jewellery items and imposed a penalty of Rs.2,00,000/- on Smt.Ekambaram Devi under Section 11 2(a) of the .

5. It is submitted that the petitioner's appeal before the Appellate Commissioner was also rejected and therefore, the petitioner preferred revision before the fourth respondent under Section 129DD of the Customs Act, 1962 , which has now culminated in the impugned order rejecting the prayer of the petitioner. Operative portion of the impugned order reads as under:-

“8. The Applicants have contended that gold is not a prohibited item. In addressing this contention, Government observes, the Hon'ble High Court of Madras, in the case of Commissioner of Customs (Air), Chennai-I Vs. P.Sinnasamy reported in 2016 (344) E.L.T.1154 (Mad.) relying on the judgment of the Hon'ble Apex Court in the case of Sheikh Mohd. Omer Vs. Collector of Customs, Calcutta and others reported in 1970 (2) SCC 728 has laid down that the expression 'prohibition' used in Section 111(d) must be considered as a total prohibition. The Hon'ble Court ruled that “............ any goods which are imported or attempted to be imported contrary to “any prohibition imposed by any law for the time being in force in this country” is liable to be confiscated. “Any prohibition' referred to in that section applies to every type of “prohibition”. That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression “any prohibition” in Section 111(d) of the Customs Act, 1962 includes restrictions”. It is thus clear that gold, may not be one of the enumerated goods, as prohibited goods, still, if the conditions for such import are not complied with, then import of gold, would squarely fall under the definition, “prohibited goods”. In para 47 of the said case the Hon'ble High Court has observed “Smuggling in relation to any goods is forbidden and totally prohibited. Failure to check the goods on the arrival at the customs station and payment of duty at the rate prescribed would fall under the second limb of Section 112 (a) of the Act, which states omission to do any act, which act or omission, would render such goods liable for confiscation ...........”. Thus failure to declare the goods and failure to comply with the prescribed conditions has made the impugned gold “prohibited” and therefore liable for confiscation and the Applicants thus liable for penalty.

9. The contentions of the Applicants that the “eligibility” criteria for import of gold, was only to extend concessional rate of duty is not correct. The Applicants, were held ineligible passengers for import of gold as they did not satisfy the conditions prescribed for the import of gold as prescribed