2013 (11) TMI 495 - HC - Customs

Confiscation of 5 gold biscuits with foreign markings totally weighing 582.8 grams - Refund claim on sale of gold - Tribunal allowed the refund claim - Whether the petitioner is entitled to the sale proceeds after deducting duty fine and penalty imposed upon the petitioner - Held that - Since the Assistant Commissioner of Customs sold out the 5 gold biscuits overlooking the order passed by the Commissioner of Appeal dated 28-8-1997 allowing the petitioner to redeem the gold on payment of fine and penalty the action of the Assistant Commissioner in selling the gold biscuits is contrary to the earlier order passed by the Commissioner of Appeal dated 28-8-1997. Since the petitioner is seeking redemption of the confiscated gold he cannot escape payment of fine and penalty. In fact counsel for the petitioner offered to pay fine and penalty. As regards payment of duty is concerned in our opinion duty would be payable only if the gold was acually allowed to be redeemed. In the present case what is being given is the sale proceeds and not the gold as such. In such a case the question of paying duty in respect of the sale proceeds would not arise - No reason to interfere with the order of the Tribunal - Following decision of Shabir Ahmed Abdul Rehman v. The Union of India and Others 2008 (12) TMI 101 - BOMBAY HIGH COURT - Decided against Revenue.

Summary

Issues:
- Appeal against order directing payment of Rs. 2,42,500/- with interest
- Detention and confiscation of gold biscuits
- Appeal, revision, and writ petition filed by respondent
- Sale of gold before compliance with orders
- Dispute over payment of customs duty

Detention and Confiscation of Gold Biscuits:
The respondent was detained with five gold biscuits in possession, leading to the seizure of 582.8 grams of gold under mahazar. Subsequently, the gold biscuits were confiscated, and a penalty of Rs. 5,000/- was imposed. An appeal by the respondent allowed redemption on payment of a fine of Rs. 15,000/- in addition to the penalty. However, a revision by the department set aside the appeal's order, restoring the original confiscation. The matter was remitted for fresh consideration, resulting in an option for the respondent to redeem the gold under Section 125 of the Customs Act, 1962. Despite this, the appellants sold the gold before the respondent could comply with the order, leading to a financial dispute.

Dispute Over Payment of Customs Duty:
The appellants contended that the respondent must pay the customs duty, as confirmed by the first appellant while passing the order as a concession. On the contrary, the respondent argued that the sale of gold by the appellants before the revision was authorized had put them in financial distress. The respondent challenged the deduction of customs duty, emphasizing that it was never raised in previous proceedings and was unjustly imposed without proper notice. Citing a relevant legal decision, the respondent highlighted that duty would only be payable if the gold was actually allowed to be redeemed, not when sale proceeds were provided.

Judgment and Analysis:
The High Court dismissed the appeal, upholding the order directing the appellants to pay Rs. 2,42,500/- after deducting the penalty and fine amounts. The Court noted that the gold was sold by the appellants before the respondent could redeem it, making the issue of customs duty deduction irrelevant. Referring to a decision by the Bombay High Court, the Court emphasized that duty payment would apply if the gold was redeemed, not when sale proceeds were involved. Therefore, the Court found no error in the single Judge's order, considering the circumstances and legal precedents. The appeal was dismissed with no costs awarded.