Customs, Excise and Gold Tribunal - Mumbai
Mohini Bhatia vs Commissioner Of Customs on 21 December, 1998
Equivalent citations: 1999(106)ELT485(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. These two appeals are against the common order of the Commissioner of Customs, Sahar. The facts as narrated in his order are these. On information, the Customs officers located Geeta Maciejovsky who had arrived from Singapore. She had passed through the green channel of the Customs when she was asked by officers whether she was carrying any gold to which she replied in the negative. She was thereupon searched when she was found to be carrying 17 gold bars, weighing 10 tolas each stitched to the inner side of one of her undergarments and 8 bars weighing 10 tolas each inside her shoes. She told the officers that she was accompanied by her mother Mohini Bhatia (the other appellant) who had cleared customs in the green channel and was waiting outside the terminal building. The officers thereupon located Ms. Bhatia and brought her inside and searched her, finding 40 gold bars weighing 10 tolas each concealed in her undergarments. Officers seized the gold, the clothes and shoes in which it was contained and questioned both these passengers.
2. Geeta Maciejovsky said that the gold which she was carrying was given by her mother who purchased that from the family and savings. She claimed that she did not know that she was committing an offence. Mohini Bhatia, apart from giving her details of life in Austria where she and her daughter live, said that she intended to use her savings and those of her daughter and son to settle in Singapore and later decided to settle in India, and hence had brought the gold, that they had not declared the gold to save duty. In her later statement she confirmed that 25 gold biscuits which her daughter carried had been given by her.
3. In the replies to the notices which were issued to both the passengers proposing confiscation of gold and penalties on them, each of these persons has taken the stand that they carried the gold concealed in their undergarment and shoes for the purpose of safety. Correctness of panchanamas and statement is questioned. Statements were signed under coercion. Each one has taken a stand that all the gold belongs to Ms. Geeta Maciejovsky who was eligible to import it into India and part of it was carried by her mother for safety.
4. The Commissioner did not accept these contentions. He found that the gold was concealed by each of them and not declared. He said that Bhatia did not satisfy the criteria specified in Notification 171/94 which permits import of gold by passengers and finds that the gold carried by her did not belong to her. On the other hand, he said, the gold that Maciejovsky carried itself belong to Bhatia. He, therefore, ordered confiscation of the gold and imposed penalties on each of them.
5. We are unable to agree that it has been shown that insertions were made in the panchanama relating to search of Geeta Maciejovsky that lead to the conclusion that it was not prepared on the spot or in the presence of witnesses. The additions consist of the following words "gate pass which was to be handed over to the gate officer" in the 11th line of the second page, and addition of the word "(Panch No. 1)" in the 6th line of the third page. We do not find any significance with regard to the first addition. The addition has attested by the witnesses and there is nothing to show that it was not made before the proceedings were completed. This additions are of significant, if made late, they would show that the appellant had cleared the customs and was not waiting to go before the officers at the baggage counter to make declaration. It is only after a passenger was made declaration, that the gate pass, which shows the number of pieces of luggage carried by him; is issued. However, we have seen, there is nothing to show these words might not have been omitted when the panchanama was first prepared and were added before it was finally signed. Such omissions are not rare. The officers conducting such investigations may have some imperfection in their work. The position is different if it can be shown that these words were added much after the panchanama was completed and the witnesses has signed. It has not been shown that the witnesses as well as the baggage officers who made the panchanama or the officer, who issued gate passes were cross-examined; nor has it been contended that cross-examination was asked for and not granted.
6. The said addition shows that when this appellant was asked to remove jeans, it was in the presence of only the first panchnama witness and not the second. The first witness is seen to be a woman Mrs. M. Augusty, the second S.B. Waingankar. It would appear that the officers out of a sense of delicacy, asked the male witness not be witnessed when the appellant was to remove part of her clothes. This is the only significance that we can place addition of the words. However, even if we assume that these words were added later, it will only strengthen the department's case that both the witnesses were present when the gold concealed inside the undergarments worn by this appellant beneath inside her jeans was found. In addition, this appellant Geeta Maciejovsky had in her statement accepted that she was carrying gold on her mother's instructions, which she had not declared to the customs and when by going through the Green Channel. The statement was not retracted for a long period till the reply to the show cause notice. The recovery of gold from her person after she cleared customs has, in our view established.
7. The next question is to be considered is the ownership of the gold carried by Geeta Maciejovsky. In her statement she had said that her mother gave her the gold to carry. It is contended that this statement is not to be relied upon, as it was obtained by inducement. She was afraid that her husband in Austria was ignorant of her carrying gold, finding about her being arrested and so not being able to return home. The officers of the customs exploited this fear and made her confess that the gold belong to her mother .It is contended that she was carrying the gold and she was an eligible passenger in terms of the relevant notification, it is to deny her this benefit that the statement was obtained.
8. It is a fact that Geeta Maciejovsky was not arrested; and this is somewhat unusual. It is possible, as the departmental representative contended, that the officers gave way to her pleas not to be arrested on account of the trouble she would face from her husband. However, this fact is not significant in considering the appellant's plea. There was nothing to stop her after she returned to Austria to point out that the gold belongs to her mother, if indeed that was the case. She was safe in Austria from any possible action that the officers could take. Despite this, however, no such claim has been made. Further, her mother in her statement was also accepted the ownership of the gold and this statement has not been retracted till the reply to the notice, although she was arrested and released on bail. We, therefore, see no reason to not to accept the statement made by both the mother and daughter that the gold belong to her mother.
9. It is contended on behalf of Mohini Bhatia that she was not carrying any gold. She was waiting in the baggage hall for clearance to declare and that the official version that she had left the customs and gone out is false. Her advocate points to the addition in the panchanama to say that recovery of gold was not from her body after she was brought from outside the customs area. He says that it is beyond belief that a person who has cleared Customs would be possibly waiting outside and that she would continue to keep the gold concealed in her possession and she finds support on the additions and overwriting in the panchanama and in the statement.
10. The only additions in the panchanama is the addition of the words "Panch 1" in the narrative which relating to the presence of gold in her undergarments. On this the view that we have expressed earlier while dealing with that portion of the panchanama relating to Geeta Maciejovsky's statement would apply.
11. The first paragraph of Mohini Bhatia's statement is written in her own handwriting, the subsequent paragraphs being in the handwriting of the customs officers. We are unable to accept that this shows that the statement was not voluntarily given. The last sentence in that paragraph written in Mohini Bhatia's hand says that she finds it difficult to write in English and requested the officer to write. It is true that if the appellant could not write in English, she could have been asked to write the statement in any Indian language which she knew. (She is a person of Indian origin who can presumably speak and write an Indian language.) However, this imperfection is not sufficient to render the entire statement inadmissible as not voluntary. This appellant can write in English to some extent as the first paragraph and the addition made at the end of the statement in her hand, obviously shows; she agree with the statement recorded to be correct. There is no contention that the statement was retracted at the earliest opportunity which is what we would expect wherein it is not voluntary. The retraction of the statement, as contained in the reply to the notice, much later and there is no explanation for the delay.
12. Another factor which we must take note of is the manner of carriage of the goods. They were concealed on the body and in the case of Geeta Maciejovsky, in her shoes. It would have been extremely uncomfortable to sit through the journey of about 4 hours from Singapore to Mumbai, not to mention the waiting time prior to and subsequent to the journey, carrying these goods. We do not find it possible to accept the explanation that the gold was so carried as a measure of safety or security. After all, each of these passengers would have been in the airport terminal at Singapore and Mumbai where there is, in any event, considerable police security, or on the aircraft. It is not as if they were in a crowded city from where there bags could be easily robbed; they could have easily carried these gold in her own hand baggage or alternatively checked-out it in. We must not be understood as saying that every person carrying gold by himself necessarily does it to conceal it. The particular manner, the parts of the body in which the gold was kept, strongly suggest the intention not to disclose the presence of the gold to anyone.
13. The conclusion that follows from these discussions is that the gold belong to Mohini Bhatia and was not declared to the customs officers on arrival. It is thus rightly liable for confiscation. Leniency is pleaded on the ground that Mohini Bhatia become ineligible for the concession only because she had overstayed in India beyond the period specified in the notification by a few days and such delay is often condoned by the department and also on the ground that the gold was bought out of the savings of the family members in order for them to settle in India. Everyday, hundreds of people come to India and other countries to settle and transfer their savings in order to be settled. Not everyone of them contravene the law in order to maximise their savings at the expenses of the government. The concession for import of gold has been provided, among other reasons as a benefit to person of Indian origin returning to India. The concession, therefore, must be limited to the persons who fulfil the condition in the notification. It was contended that Geeta Maciejovsky was also eligible for the concession, since the notification does not provide that gold must be bought by either person only. This is correct. We do not consider it necessary to go into those aspect for the reason that the gold become liable to confiscation under Clause (m) of Section 111 which had not been declared.
14. It was contended by the appellants that the import of gold was no longer prohibited and that therefore, it was the duty on the part of the adjudicating authority, if he was of the view that it is liable for confiscation, to permit its redemption on appropriate fine. The departmental representative draws attention to the definition of the term "prohibited goods" in Clause 33 of Section 2 of the Act, to say that goods, the import of which is subject to fulfilment of any condition must be considered to be prohibited goods if that condition is not complied with.
15. We are unable to accept this submission. Clause 33 of Section 2 defines prohibited goods as any goods the export or import of which is subject to any prohibition under the Act or any other law for the time being in force, and excludes any such goods in respect of which the condition subject to which the goods are permitted to be exported or imported had been complied with. The import policy in force at the relevant time for the period 1992-97 makes a distinction between prohibited goods and restricted goods. Paragraph 10 of the policy says that the negative list of imports consist of goods, the export or import of which is prohibited restricted through licensing or otherwise, or canalised. Para 11 provides that the prohibited goods shall not be exported or imported. Para 12 provides that any goods the export or import of which is restricted through licensing, may be exported or imported only in accordance with the licence issued in this behalf. Part I of the negative list of goods consists of prohibited items. Gold is not included in this part. Part II consists of restricted items. Gold figures in Part II as a restricted item, the restriction being that it can only be imported in accordance with a licence or a public notice. It would, therefore, not to be correct to say that the policy prohibited import of gold. The latter part of the Clause 33 of Section 2 of the Act is in the nature of a clarification that even the goods, the import of which is prohibited are not considered to be prohibited if the condition subject to which their export or import are being complied with.
16. The gold was, therefore, not prohibited for import at the relevant time and an option had to be given to the importer to redeem on payment of fine which does not exceed the market price of the goods less duty payable thereon. Taking into account the value of the gold in the international market and the local market at the relevant time and the circumstances of the import we consider it appropriate for such redemption fine to be Rs. 2.50 lakhs in the case of gold imported by Geeta Maciejovsky and Rs. 6 lakhs in the case of gold imported by Mohini Bhatia. On payment of such fine within 3 months from the receipt of this order the gold may be cleared for home consumption. We have not acceded to the request made for re-export of the gold. In view of the discussions as to the circumstances in which the gold was attempted to be cleared without declaration, and in the case of Mohini Bhatia actually so cleared, we do not think the appellants should be put in the advantageous position of starting at square one. The conduct of the appellants does not justify grant of re-export.
17. We consider that the penalty imposed of Rs. 6 lakhs and Rs. 2 lakhs on Mohini Bhatia and Geeta Maciejovsky are in commensurate with the gravity of the offence committed by each of them and the role played by each of them and the value of the gold seized.
18. Appeals allowed in part. Consequential relief.