COMMISSIONER OF CUSTOMS AIR Vs. SAMYNATHAN MURUGESAN

JUDGEMENT

(1.) THE substantial question of law raised in this civil miscellaneous appeal are as follows:

(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 India for a short visit and went back in 1995, worked their for a period of 5 = 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.) MR. A. Thiagarajan, learned Senior Counsel appearing for the respondent submitted that the goods were only restricted goods. Gold was not a prohibited item. Therefore, the officer was under a mandatory duty to give option to the person found guilty to pay in lieu of confiscation. He relied on 1997 (91) E.L.T. 227 (A.P.)(Shaik Jamal Basha Vs. Government of India).