2011 (6) TMI 488 - HC - Customs

Whether appellant can claim release of the goods on payment of redemption fine and duty Held that - goods so brought is prohibitory goods as there is clear violation of the statutory provisions for the normal import of gold, as per the statement given by the appellant under Section 108 of the Act, he is only a carrier i.e. professional smuggler smuggling goods on behalf of others for consideration, no any merit in the appellant s case that he has the right to get the confiscated gold released on payment of redemption fine and duty under Section 125 of the Act, Writ Appeal dismissed

Summary

Issues:
- Appeal against the judgment declining to release smuggled gold seized by Customs Department.
- Interpretation of Section 125 of the Customs Act, 1962 regarding release of confiscated goods.
- Consideration of whether gold can be released on payment of redemption fine and duty.
- Determining the eligibility of the appellant to claim release of confiscated gold.
- Analysis of import regulations and conditions for goods like gold.
- Examination of the appellant's conduct in attempting to smuggle out gold.

Analysis:
The Writ Appeal was filed challenging the decision of the Single Judge who refused to grant the relief sought by the appellant to direct the Customs Department to release smuggled gold seized from him. The appellant, arriving from Riyadh, attempted to smuggle over 8 KGs of gold by concealing it in various items. The Customs Department seized the gold and later confiscated it despite the appellant's claim for release on payment of redemption fine and duty. The appellant contended that since gold is not a contraband item, he should be allowed to pay the necessary fines and duties for its release under Section 125 of the Act.

The appellant's appeal against the confiscation order and penalty was unsuccessful, leading to the filing of a Writ Petition. The appellant argued that Section 125 does not provide for absolute confiscation of non-contraband goods like gold. However, the Single Judge focused on the appellant's conduct of smuggling and declined relief based on the discretionary jurisdiction of the High Court under Article 226 of the Constitution of India.

During the appeal, the appellant's counsel argued that importers' conduct should not influence the option to release goods on payment of fines and duties under Section 125. The appellant's counsel cited provisions from the Foreign Trade Act to support the claim that gold is not a prohibited item. The Department's counsel referenced a Supreme Court judgment to argue that violation of import conditions can render goods as prohibited, even if the item itself is not inherently prohibited.

The High Court, after considering the arguments and statutory provisions, concluded that the appellant could not claim the release of confiscated gold as a matter of right. Despite gold not being inherently prohibited, the appellant's attempt to smuggle it by concealing the gold in various items violated import regulations. Additionally, the appellant's admission of being a carrier for professional smuggling further weakened the claim for release of the confiscated gold. Consequently, the Writ Appeal was dismissed, upholding the decision to not release the smuggled gold.