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2011 (3) TMI 802 - HC - CustomsPenalty under section 128 - illegal import of gold jewellery - under Section 111(d) and 111(m) of the Customs Act 1962 read with 3(3) of the Foreign Trade (Development and Regulation) Act 1992 -Respondents had submitted that the provisions under Notification No. 31/2003-Customs dated 1-3-2003 would be available only if the goods in question belong to the petitioner - Therefore the gold jewellery would not be available for re-export as the petitioner is not the owner of the goods - Further they were only carriers of the goods in favour of an unknown dealer - It had also been submitted that an enhanced penalty had been paid by nearly 13 out of the 15 persons who were liable to pay the same - It had also been submitted that an efficacious alternative appellate remedy is available to the petitioner under the 128 of the Customs Act 1962. However it had been admitted that the owner of the goods is not known - finds it appropriate to set aside the impugned order of the third respondent dated 24-12-2010 in so far as it relates to the deposit of Rs. 3, 00, 000/- being the enhanced penalty imposed on one Rahamathullah for the release of the gold chains and to direct the second and the third respondents to release the goods in question for the purpose of re-exporting the same without imposing any conditions as per the provisions of the Customs Act 1962. The respondents have not been in a position to show as to how the petitioners would be liable to pay the enhanced penalty imposed on Rahamathullah. Further there is no finding that the goods in question belongs to Rahamathullah. It is also noted that the order of the Commissioner of Customs (Appeals) Chennai dated 5-2-2010 had become final. In such circumstances the petitioner need not be compelled to avail the appellate remedy available under the provisions of the Customs Act 1962.
Issues Involved:
1. Eligibility of the petitioner to import gold chains under Notification No. 31/2003-Customs. 2. Legality of the absolute confiscation of gold chains and imposition of penalties. 3. Validity of the enhanced penalty on Rahamathullah and its recovery from the petitioner. 4. Refusal to release the gold chains for re-export despite payment of fine and penalty. 5. Jurisdiction and applicability of Section 142 of the Customs Act, 1962, for recovering penalties. Issue-wise Detailed Analysis: 1. Eligibility of the Petitioner to Import Gold Chains under Notification No. 31/2003-Customs: The petitioner, a Non-resident Indian employed in Singapore, arrived at Chennai Airport carrying gold chains weighing 310 grams. The petitioner claimed eligibility to import the gold chains under Notification No. 31/2003-Customs, which allows the import of gold at a concessional rate of duty, provided the gold does not exceed 10 kilograms and the importer has stayed abroad for at least six months. The petitioner satisfied these conditions, making him eligible to import the gold chains as part of his baggage. 2. Legality of the Absolute Confiscation of Gold Chains and Imposition of Penalties: The customs authorities intercepted and seized the gold chains from the petitioner, alleging that he and others were carriers for an unknown operator. The Additional Commissioner of Customs confiscated the gold chains absolutely under Sections 111(d) and 111(m) of the Customs Act, 1962, and imposed a penalty of Rs. 10,000 on the petitioner under Section 112 of the Customs Act. The petitioner appealed against the confiscation and penalty, and the Commissioner of Customs (Appeals) allowed the re-export of the gold on payment of a redemption fine of Rs. 37,000 and a penalty of Rs. 20,000. 3. Validity of the Enhanced Penalty on Rahamathullah and Its Recovery from the Petitioner: The Commissioner of Customs (Appeals) enhanced the penalty on Rahamathullah to Rs. 25,000 per case, totaling Rs. 3,00,000. The respondents refused to release the gold chains for re-export, citing non-payment of the enhanced penalty by Rahamathullah. The petitioner argued that the penalty on Rahamathullah was personal and could not be recovered from him or other passengers. The court agreed, stating that the enhanced penalty on Rahamathullah could not be imposed on the petitioner, as there was no evidence that the goods belonged to Rahamathullah. 4. Refusal to Release the Gold Chains for Re-export Despite Payment of Fine and Penalty: The petitioner paid the fine and penalty and sought re-export of the seized gold chains. Despite this, the respondents did not release the goods, citing the unpaid enhanced penalty by Rahamathullah. The court found this refusal arbitrary and illegal, as the petitioner had complied with the order of the Commissioner of Customs (Appeals), which had become final. 5. Jurisdiction and Applicability of Section 142 of the Customs Act, 1962, for Recovering Penalties: The respondents invoked Section 142(1)(b) of the Customs Act, 1962, to recover the enhanced penalty from the petitioner and other passengers. The court held that Section 142 could not be used to recover personal penalties from individuals who were not directly liable. The court cited precedents, including V. Vembu Iyer v. Collector of Customs and E. Abdul Rahiman v. Union of India, which established that personal penalties could not be recovered from third parties. Conclusion: The court set aside the impugned order requiring the petitioner to pay the enhanced penalty imposed on Rahamathullah for the release of the gold chains. The court directed the respondents to release the gold chains for re-export without imposing any conditions, as per the Customs Act, 1962. The writ petition was ordered accordingly, with no costs, and the connected miscellaneous petition was closed.
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