1. Appeal under Section 129A of the Customs Act, 1962 praying that in the circumstances stated therein, the Tribunal will be pleased to order refund of penalty paid and order re-export of certain goods confiscated without any fine and order release of certain goods confiscated at concessional tariff.
2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri M.G. Chandy, Advocate for the appellant and upon hearing the arguments of Shri A. Vijayaraghavan, Departmental Representative for the respondent, the Tribunal makes the following: 3. Briefly stated the appeal is against the confiscation of six items of gold and three wrist watches totally valued Rs. 20,297/- made under Order No. O.S. 289/82, dated 4-4-1982 of the Assistant Collector of Customs, Trivandrum Air Customs as upheld by the Collector of Customs (Appeals), Madras in her Order No. C. 27B/108/1982 dated 27-7-1982.
These are confiscated after holding that they were concealed. A penalty of Rs. 2,000/- was also imposed on the appellant.
4. The Customs authorities allowed some other items including a camera and some ornaments after entering them in the passport to ensure their re-export from the country. The Collector (Appeals) after examining the matter held the concealment as established. Therefore, the absolute confiscation was also upheld but the penalty was reduced to Rs. 2000/-.
5. Before us it was vehemently argued that there was no concealment and the appellant also claimed that all items were declared and that the appel- lant was not given an opportunity to defend herself against the charge of concealment. The appellant submitted that she and her brother were not given an opportunity to defend themselves against the charge of concealment.
6. It was submitted that the appellant is the wife of a defence officer in Abu Dhabi and has stayed there from 1975 onwards and came to India and landed at Trivandrum Airport in April, 1982 along with her brother Philip Chacko and with her child aged eight months. Her brother was coming to India after getting a job in the Gulf and due to failure of electricity in the baggage hall and in the heat of summer, she was looking after the child and her brother attended to the baggage. She also prayed that the jewellery was kept in her vanity bag and was not concealed and pointed out that the actual examining officer never stated that there was any concealment. She also submitted that whereas according to the reporting officer, the gold coin and gold biscuits were inside the vanity bag, the examining officer stated that these were kept inside the suitcase. These were kept in the vanity bag for security purposes along with currency, passport etc.
7. The representative of the Department submitted that the appellant admitted non-declaration before the Assistant Collector and the Assistant Collector's recording and findings are very clear and therefore, the confiscation and penalty were maintainable.
8. We have considered the submissions by both sides. It has not been denied by the Department that at the material time there was no electricity in the baggage hall and that the lady was travelling with her child aged 8 months. Besides, it is claimed that the appellant was not confronted by the officers. We do agree with this part as it has not been possible to follow all the niceties of law and it is very often a case where passengers dispense with the formalities so that adjudication can be done expeditiously and they can leave for their destination without too much delay. Therefore, the arguments that proper confrontation was not done and that proper opportunity was not given cannot be taken as substantiated and hence this plea merits no consideration.
9. Having observed so we feel that in this particular case there are some extraneous circumstances which call for a lenient view. The appellant lives in Abu Dhabi and came to India on tour. If all the items were properly declared and taken note of, they would have been entered in the TBRE Form and she would have re-exported them.
Therefore, this is not a case in which it can be held that an attempt was made to smuggle things into India and it is quite possible that after a tiresome journey and with the restless baby who, as stated by her, was crying and possibly in a disconcerted frame of mind, the lady might not have declared all the items.
10. Taking an overall view, we order that the penalty imposed on the appellant, namely of Rs. 2000/- should stand. The confiscated goods totally valued at Rs. 20,297/- should be released on payment of a fine of Rs. 5,000/- on condition that they are re-exported within four months from the date of receipt of this order.
11. We are not passing any order in respect of Philip Chacko, appellant's brother, on whom also a penalty has been imposed for the reason that he has not come up in appeal before us and this appeal only pertains to Smt. Rachel Oommen.