JUDGMENT : 1. The Commissioner Customs (Preventive) has preferred this appeal under Section 130 A of the Act 1 The Customs Act, 1962 against the order dated 22.2.2018 passed by the Customs, Excise and Service Tax Appellate Tribunal Regional Branch, Allahabad (CESTAT). 2. The facts leading to this appeal are that that the respondent Deepak Bajaj who is a holder of British pass-port entered India on 2.4.2014 from Nepal through Sonauli Boarder. The SSB Officers at Sonauli conducted search upon him and found 4320 gms of gold of 999.9 purity of foreign origin worth Rs. 1,09,12,590/- in his pockets of jeans, jacket and shoes. The gold so found was seized and he was produced before the Custom Officers along with the gold at land Customs Station Sonauli. His statement was recorded. He was issued a show cause notice on 27.8.2014 informing him that he was trying to smuggle gold of third country origin into India. The import of such gold is prohibited vide notification no. 9 of 1996 Customs dated 22.1.1996 and therefore why the same may not be confiscated under Section 111(d) of the Act. 3. In pursuance to the aforesaid show cause notice order in original no. 23/2015 dated 12.3.2015 was passed confiscating the gold and imposing penalty of Rs. 25 lakhs upon the respondent. 4. The appeal preferred by the respondent before the Commissioner (appeals) was dismissed on 13.1.2016 whereupon the respondent preferred further appeal to the tribunal which has been allowed on 22.2.2018 according benefit of Section 80 of the Act and directing the Custom Authorities to return the pass-port of the respondent and to allow the respondent to take the seized gold out of India. 5. The appeal on presentation was admitted on 21.5.2018 on the following substantial question of law:- “Whether in the absence of any declaration under Section 77 of the Customs Act any benefit could be extended under Section 80 of the Act?” 6. We have heard Sri Piyush Agrawal along with Sri Parva Agrawal, learned counsel for the appellant and Sri B.K. Singh, learned counsel for the respondent. 7. Sri Agrawal has argued that the benefit of Section 80 of the Act could only be accorded where in respect of any article which is dutiable or the import of which is prohibited a true declaration has been made under Section 77 of the Act. 7. Sri Agrawal has argued that the benefit of Section 80 of the Act could only be accorded where in respect of any article which is dutiable or the import of which is prohibited a true declaration has been made under Section 77 of the Act. The respondent had not made any declaration in respect of the seized gold and therefore tribunal has manifestly erred in applying the provision of Section 80 of the Act. 8. Sri Singh on the other hand contends that the respondent was not given any opportunity to make a declaration as contemplated by Section 77 of the Act. He was not asked to make a declaration which is a duty caste upon the Custom Officer. The seized gold was not a prohibited item and in this regard he placed reliance upon a notification dated 17th March 2012 issued under Section 25 (1) of the Act. He also contends that the seized gold was not an item which was exported to Nepal so as to apply notification dated 22.1.1996. 9. Section 80 of the Act provides for temporary detention of baggage. It reads as under:- 80. Temporary detention of baggage:- “Where the baggage of a passenger contains any article which is dutiable or the import of which is prohibited and in respect of which a true declaration has been made under section 77, the proper officer may, at the request of the passenger, detain such article for the purpose of being returned to him on his leaving India and if for any reason, the passenger is not able to collect the article at the time of his leaving India, the article may be returned to him through any other passenger authorised by him and leaving India or as cargo consigned in his name.” 10. The aforesaid provision contemplates for making a declaration under Section 77 of the Act in respect of the articles which are dutiable or the import of which is prohibited to enable the proper officer to detain such articles for being returned to the passenger on his leaving India. 11. The aforesaid provision contemplates for making a declaration under Section 77 of the Act in respect of the articles which are dutiable or the import of which is prohibited to enable the proper officer to detain such articles for being returned to the passenger on his leaving India. 11. A simple reading of the aforesaid provision makes it abundantly clear that the benefit of Section 80 of the Act for return of the detained articles to the passenger at the time of leaving India would only be available to him if in respect of dutiable article or the import of which is prohibited a declaration is made by him under Section 77 of the Act. Therefore, making of declaration under Section 77 of the Act by the person whose baggage contains the dutiable articles or the import of which is prohibited is mandatory for the purposes of returning articles so contained therein. 12. Section 77 of the Act mandates the owner of the baggage to make declaration of its contents to the proper officer. The proper officer in relation to the duties performed under the Act is defined under Sub-section (34) of Section 2 of the Act to mean the officer of the Customs who is assigned those functions by the Board or the Principal Commissioner of Customs or Commissioner of Customs. In other words, a declaration under Section 77 of the Act has to be made by the owner of the baggage before the Custom Officer. 13. In the instant case respondent had entered India from Nepal through the land route via Sonauli Border. He was caught by the SSB Officer on 2.4.2014 with the contrabaned bullion and was handed over to the Custom Officers of the land Custom Station Sonauli. His statement under Section 107 of the Act was recorded on 3.4.2014 before the Custom Officer. In his statement recorded in the presence of the two independent witnesses he stated that he is resident of London. He came to India from Nepal and the gold was recovered from him on being searched at 7:30 p.m., on 2.4.2014. The said gold was purchased by him in London and the payment was made from his bank account in U.K. The said gold was brought by him from London for the purposes of getting jewelry made for his family. He came to India from Nepal and the gold was recovered from him on being searched at 7:30 p.m., on 2.4.2014. The said gold was purchased by him in London and the payment was made from his bank account in U.K. The said gold was brought by him from London for the purposes of getting jewelry made for his family. He has been brought to the Custom office at Sonauli by the officers of the SSB along with the gold recovered from him. The gold recovered from him was same and tallied with the seizure memo prepared by the SSB Officer in the presence of two independent witnesses. He has not made any declaration of the gold while entering into Nepal i.e. on his arrival at Kathmandu Airport. The gold was recovered from the pockets of his jean, coat, vest and from his shoes. 14. Another statement of the respondent was recorded on 4.4.2014 by the Customs Officer under Section 108 of the Act wherein also he admitted that the gold of the quantity mentioned was recovered from the pockets of his jeans, coat and vest as well as from his shoes. He had purchased the said gold from U.K. He had come to Nepal and was going to Delhi. He had not declared the said gold on arrival at the Kathmandu Airport. 15. The Custom Officer while recording the above statement specifically asked the respondent if he has anything else to state, but the respondent simply stated that one gold coin was missing and one of it was cut into pieces after it was seized by the SSB Officer. 16. The respondent made the above statement & voluntarily without any fear and outside pressure. At no point of time respondent stated that the above statements were recorded in duress and that it was not of his own free will. The respondent at no point of time either made any declaration as contemplated by Section 77 of the Act before the Custom Officer nor made any request that he intended to make any such declaration despite being presented before the Custom Officers and opportunity offered for the purpose. It is not the case that full and complete statement as made by respondent was not recorded. 17. It is not the case that full and complete statement as made by respondent was not recorded. 17. In view of the aforesaid facts and circumstances, as the respondent was duly produced before the Custom Officer and his statement was recorded without any duress but still he failed to make any declaration under Section 77 of the Act, it is obvious that there is no declaration about the seized gold by him as required under Section 77 of the Act which is sine qua non for extending the benefit of Section 80 of the Act. The respondent therefore can not plead and defend on the pretext that he was not given opportunity to make declaration as required under Section 77 of the Act. 18. Section 11 of the Act authorizes the Central Government to prohibit by notification in the official gazette either absolutely or subject to condition the import and export of goods of any specified description. In exercise of the aforesaid power under Sub-section (1) of Section 11 of the Act, the Central Government issued a notification No. 9 of 1996-CUS dated 22nd January 1996. It provides that for the purposes of prevention of smuggling it is necessary to prohibit the import from Nepal to India of goods which have been exported to Nepal from countries other than India. It means that the goods exported to Nepal from countries other than India are prohibited from import to India. 19. Admittedly, the gold seized from the respondent was of the third country origin and had not been exported to Nepal from India. It was purchased by the respondent in London and was then brought by him to Nepal. The bringing of the said gold from London to Nepal amounts to export of gold of the third country to Nepal. Thus, its subsequent import to India is prohibited by the aforesaid notification. Accordingly, the import of the aforesaid gold into India was in complete violation of the aforesaid notification read with Section 11 of the Act and as such is nothing but smuggling of gold. 20. The notification No. 11/2012-Customs dated 17th March 2012 relied upon by the counsel for the respondent is one which has been issued under Sub-section (1) of Section 25 of the Act exempting certain goods of the specified nature from duty. 20. The notification No. 11/2012-Customs dated 17th March 2012 relied upon by the counsel for the respondent is one which has been issued under Sub-section (1) of Section 25 of the Act exempting certain goods of the specified nature from duty. The said notification exempts the gold of the specified nature upto the limit of 10 Kg. from duty. The aforesaid notification is simply a notification exempting gold from the payment of duty. It does not over ride the prohibition which has been imposed by the notification dated 22nd January 1996. 21. The aforesaid notification in no way supersedes or negates the notification dated 22nd January 1996 issued under Sub-section (1) of Section 11 of the Act prohibiting import of the goods from Nepal of the specified category i.e., which have been brought to Nepal from countries other than India. 22. In view of the above, the notification relied upon on behalf of the respondents dated 17th March 2012 is of no help to him. In fact, it is not applicable to the facts and circumstances of the case. The argument advanced on its basis is therefore not tenable in law. 23. In the overall facts and circumstances of the case, the question raised in this appeal is answered in favour the Custom Department and it is held that the benefit of Section 80 could not have been extended to the respondent by the tribunal when there was no declaration by him under Section 77 of the Act. 24. Accordingly, the impugned order dated 22.2.2018 of the tribunal is held to be illegal and is accordingly set aside. 25. The appeal is allowed.