2011 (3) TMI 1565 - AT - Customs

Summary

Issues Involved:
1. Seizure and confiscation of gold bars, gold coins, gold jewellery, and Indian currency.
2. Applicability of Section 28(1A) of the Customs Act.
3. Imposition of redemption fine and penalties.

Summary:

Issue 1: Seizure and Confiscation of Goods
The proceeding relates to the seizure of gold bars, gold coins, gold jewellery, and Indian currency from the premises of M/s. Omkar Jewellers and M/s. Orbit Gold. The investigating agency alleged that the gold was imported by a unit under the Special Economic Zone (SEZ) and diverted to the domestic tariff area, violating legal provisions. The seized goods were believed to be smuggled, and the appellants failed to prove lawful importation and payment of customs duty as required u/s 123 of the Customs Act. Consequently, the seized gold and currency were proposed for confiscation u/s 111 and 121 of the Customs Act, respectively.

Issue 2: Applicability of Section 28(1A) of the Customs Act
The appellants paid the duties, interest, and penalties under Section 28(1A) of the Customs Act, hoping to conclude all proceedings. However, the Customs authorities contended that Section 28(1A) applies only to short levy of duty and does not cover violations of Import Trade Control and SEZ Rules. The Tribunal agreed with the Customs authorities, stating that Section 28(1A) pertains only to duty-related matters and not to other contraventions.

Issue 3: Imposition of Redemption Fine and Penalties
The Tribunal found the redemption fine and penalties imposed to be excessive. It emphasized that redemption fines should only eliminate the profit margin from the illicit activity, referencing rulings like Sagar Enterprises v. CC, Tuticorin. The Tribunal also noted the misapplication of Sections 114AA and 114A of the Customs Act by the adjudicating authority. Additionally, it clarified that Indian currency confiscated u/s 121 should be allowed to be redeemed on payment of a fine, as mandated by Section 125 of the Customs Act.

Orders:
1. Provisional release of goods and currency seized from M/s. Omkar Jewellers on payment of Rs. 16.75 lakhs and execution of a bond.
2. Provisional release of goods and currency seized from M/s. Orbit Gold on payment of Rs. 3.25 lakhs and execution of a bond.
3. Stay on the collection of all penalties imposed on the appellants during the pendency of the appeal.

Compliance Report:
The goods should be released within seven days of payment and bond execution, with compliance to be reported on 28-3-2011.