Advocates:
['M/S V BHARATHIDASAN', '', 'S YASHWANTH', 'FOR APPELLANT', 'M/S S RAMESH KUMAR', '', 'M VEERAANTHIRAN', 'P PRASAD', 'FOR R']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE: 27-04-2009

CORAM:

THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN

AND

THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN

C.M.A.No.2040 of 2007

Commissioner of Customs(Air)

Custom House

No.60, Rajaji Salai

Chennai – 1

… Appellant

Vs.

1.

Samynathan Murugesan

2.

Customs, Excise and Service Tax Appellate Tribunal

South Zonal Bench at Chennai

Shastri Bhawan Annexe, 1^st Floor

26, Haddows Road

Chennai – 600 006

… Respondents

Civil Miscellaneous Appeal against the final order No.1038 of 2006

dated 09-11-2006 on the file of Customs, Excise and Service Tax

Appellate Tribunal, Chennai.

For appellant

:: Mr. S. Yashwanth, SCGSC

For respondents :: Mr. A. Thiagarajan, SC

for Mr. S. Ramesh Kumar for R1

JUDGMENT

(Judgment of the Court was delivered by Prabha Sridevan,J.)

The substantial question of law raised in this civil

miscellaneous appeal are as follows:

“Whether in the facts and circumstances of the case,

the Tribunal was right in remanding the matter with a

direction to the Commissioner to invoke the power under

Section 125 of the Customs Act for redemption of the goods

on payment of fine?”

2.

The facts of the case are as follows:

The respondent is a Indian passport holder. He had been

working in Singapore under a work permit. The period of stay in

Singapore are as follows:

From 1993 to 1995, he was there for two years. He returned to

https://hcservices.ecourts.gov.in/hcservices/

India for a short visit and went back in 1995, worked their for a

period of 5 ½ years continuously. Then, again he was there in 2004

and 2005. In 2005, he brought gold ornaments allegedly purchased from

the savings over the years and kept in safe custody. When he arrived

at Chennai Airport on 12-07-2005 a Customs Officer intercepted him.

He asked him what were the goods that he was carrying. He said that

they were personal belongings, TV sets and gold jewellery. He also

offered to pay duty if it was found that he was carrying baggage in

excess of free baggage allowance or in excess of duty free allowance.

The officers seized gold jewellery under a mahazar and also damaged

the TV set to see if any gold was concealed in the picture tube. The

confessional statement was recorded. He was arrested and remanded to

judicial custody on 13-07-2005 and also detained under COFEPOSA. On

09-01-2006, a show cause notice was issued. The Department proposed

to levy penalty under Section 112 of the Customs Act. The

Commissioner of Customs ordered absolute confiscation of the gold

jewellery and a TV set and a penalty of Rs.2,00,000/- was imposed.

On appeal, the Tribunal remanded the matter for fresh adjudication,

giving the respondent a reasonable opportunity of redeeming the

goods. Against this order of remand, the present appeal has been

filed.

3. The learned Senior Central Government Standing Counsel

submitted that a person working abroad is eligible to import gold

weighing upto 7.075Kgs as per the Explanation to notification

31/2003-Cus.dated 01-03-2003. An eligible passenger is one who has

coming to India after a period of not less than 6 months of staying

abroad and short visits upto a total of 30 days shall be ignored.

The learned Senior Central Government Standing Counsel submitted

that the respondent herein gone to Singapore on 19-04-2005 and

returned to India on 12-07-2005, that is, he had stayed only for

about 2 ½ months and prior to 19-04-2005 had visited abroad was

during 2004. There were no short visits. Therefore, the respondent

was not ‘an eligible passenger’ to bring gold.

4. The next submission that he made was that the respondent was

in fact walking through the green channel at the time of interception

and he specifically denied that he was carrying gold. In the customs

declaration form, he had not declared the gold ornaments carried by

him. But when the gold jewelle