2020 (12) TMI 1396 - HC - Customs

Challenged the Order in original, Appeal and Revision - Confiscation of Aluminum Coated Gold Wires - Penalty - failed to prepare any seizure report at the time of the seizure of the goods - seeking Release and return back to the petitioner the impugned goods (Aluminum Coated Gold Wire) in terms of section 125(1) of Customs Act, 1962 - violation of Section 112(a) - Whether the omission or failure on the part of the concerned officer to draw a separate seizure memo along with the panchnama would render the seizure illegal and thereby vitiate all the subsequent proceedings right upto the confiscation of the goods seized - HELD THAT - There is no justification for the acceptance of the contention that omission or failure to draw a separate seizure memo u/s 110 of the Act is sine qua non for taking action u/s 124 of the Act. These two sections are entirely independent to each other. There is no substance in the contention that if no separate seizure memo under Section 110 of the Act is prepared, the same will render the seizure of the goods by itself illegal and the authority u/s 124 of the Act will also have no jurisdiction thereafter to proceed with the confiscation proceedings or with the imposition of penalty. The words used in Section 112 and Section 124 respectively of the Act are any goods and any person . These words are of the widest import and they cannot be given a restricted meaning. There is nothing in these provisions to indicate that the goods in respect of which an order of confiscation or penalty can be passed u/s 111 and Section 112 respectively must be the goods seized under the provisions of Section 110 of the Act. It would be too much for this Court to take the view that in the absence of a separate seizure memo the authorities could not have proceeded further or assumed jurisdiction for the purpose of confiscation of the goods. To confiscate would mean to adjudge goods or property to be forfeited to the public domain and to deprive the owner of the right of ownership of the same. It cannot be gainsaid that adjudication of confiscation of goods can be recorded even without seizure of the goods. Similarly, personal penalty can be imposed even when the goods have not been seized. Such a situation is contemplated by clause (b) of Section 112 of the Act. At the cost of repetition, we state that it would be too much to say that the omission or failure to draw or prepare a separate seizure memo along with the panchnama would render all subsequent proceedings bad in law. Thus, we reject the first contention of Mr.Shastry as regards Section 110 of the Act. Whether clause (a) or clause (b) of Section 112 would apply or both, failing which the proceedings would be liable to be quashed - In our opinion, there is nothing in Section 112 which requires that means rea must be proved before penalty can be levied under that provision. If on facts, it is found that the assessee had made a false representation, Section 112 is with regard to penalty for improper importation of goods. It is the blameworthy and suspicious conduct which is, indeed, the sine qua non for invoking the provision of Section 112 of the Act. Once a finding is recorded by the competent authority that the writ-applicant herein attempted smuggling of gold by concealing the same without payment of the Customs duty, coupled with the fact that the writ-applicant had handed over the Indian Customs Declaration Form (Disembarkation Slip) declaring that he was not carrying/ having any dutiable articles before the Customs Officer on duty, that would clearly attract the provisions of Section 112 of the Act and, in our opinion, no further finding is required that the assessee had also the mens rea. Whether, such goods are legally or illegally imported - fall within Section 11 of the Customs Act, 1962 - A conjoint reading Sections 2(33), 11 or 11A of the Act and other provisions in the Customs Act, 1962, and any other law, for the time being in force, would also make it clear that importation of goods, defined as illegal or prohibited or without complying with the conditions, or in violation of statutory provisions in the Customs Act, 1962 or any other law for the time being in force and in all cases, whether there is either total prohibition or restriction, in the light of the judgment of the Supreme Court in Om Prakash Bhatia's case 2003 (7) TMI 74 - SUPREME COURT such goods should fall within the definition of Prohibited goods. When import is in contravention of statutory provisions, in terms of Sections 11 or 11A of the Customs Act, 1962 or any other law, for the time being in force and when such goods squarely fall within the definition 'illegal import', or the other provisions in the statute, dealing with prohibition/restriction, the same are to held as, prohibited goods and liable for confiscation. If there is a fraudulent evasion of the restrictions imposed, under the Customs Act, 1962 or any other law for the time being in force, then import of gold, in contravention of the above, is prohibited. For prohibitions and restrictions, Customs Act, 1962, provides for machinery, by means of search, seizure, confiscation and penalties. Act also provides for detection, prevention and punishment for evasion of duty. The expression, 'subject to prohibition in the Act and any other the law for the time being in force.' in Section 2(33) of the Customs Act, has wide cannotation and meaning, and it should be interpreted, in the context of the scheme of the Act, and not to be confined to a narrow meaning that gold is not an enumerated prohibited good to be imported into the country. If such narrow construction and meaning have to be given, then the object of the Customs Act, 1962, would be defeated. The Provisions in the Customs Act, 1962, dealing with prohibition/restriction or any other law for the time in force, have to be read into Section 2(33) of the Act. Section 11A of the Act, as to what is 'illegal import', cannot be thrown to winds, while interpreting, 'what is prohibited goods', in terms of Section 2(33) of the Customs Act, 1962. To add, while interpreting Section 2(33) of the Customs Act, 1962, as to what is prohibition, imposed in other laws, for the time being in force, one cannot ignore, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, rules framed by way of delegated legislation, like the Baggage Rules, 1998, framed in exercise of the powers conferred under Section 79 of the Customs Act, 1962 or for the matter, Section 77 of the Customs Act, 1962, which mandates, the owner of the baggage for the purpose of clearing the goods, to make a declaration of the contents of the baggage to the proper office and also the customs Notification No.3/2012, dated 16.01.2012, that only passengers of Indian origin or a passenger in possession of a valid passport, issued under the Passport Act, 1967, who have stayed abroad for six months and above alone are eligible to import gold of foreign origin and clear the same on payment of customs duty, at the rate prescribed. Thus, in the overall view of the matter, we are convinced that no case is made out by the writ-applicant for grant of any relief as prayed for in this writ-application. In the result, this writ-application fails and is hereby rejected.

Summary

Issues Involved:
1. Legality of the seizure of goods under Section 110 of the Customs Act, 1962.
2. Applicability of penalty under Section 112 of the Customs Act, 1962.
3. Right to pay fine in lieu of confiscation under Section 125 of the Customs Act, 1962.

Detailed Analysis:

1. Legality of the Seizure of Goods under Section 110 of the Customs Act, 1962:
The writ-applicant argued that the seizure of the goods was illegal due to the failure of the Customs Officers to prepare a separate seizure report as mandated by Section 110(1) of the Act. The Court noted that while a separate seizure memo was not prepared, the subjective satisfaction that the goods were liable to be confiscated was recorded in the panchnama. The Court emphasized that the omission to draw a separate seizure memo does not render the seizure illegal and does not vitiate subsequent proceedings. The Court referred to the Division Bench decision in J.K.Bardolia Mills v. M.L.Khunger, which held that the provisions of Section 110 and Section 124 are independent and the absence of a separate seizure memo does not affect the validity of confiscation proceedings. The Court concluded that the seizure was valid and rejected the writ-applicant's contention.

2. Applicability of Penalty under Section 112 of the Customs Act, 1962:
The writ-applicant contended that the penalty under Section 112(b) was improperly imposed as the Customs Department failed to establish the presence of mens rea. The Court clarified that Section 112(b) deals with the blameworthy conduct of the person concerned and does not necessarily require mens rea. The Court cited the decision in Comex Co. v. Collector of Customs, Madras-I, which held that the establishment of blameworthy conduct suffices for imposing a penalty under Section 112. The Court noted that the writ-applicant's act of concealing gold and making false declarations clearly indicated blameworthy conduct, thereby justifying the penalty under Section 112(b).

3. Right to Pay Fine in Lieu of Confiscation under Section 125 of the Customs Act, 1962:
The writ-applicant argued that he should have been given the option to pay a fine in lieu of confiscation as the appellate authority had acknowledged that gold is not a prohibited item. The Court referred to the decision in Commissioner of Customs (Air) v. Samynathan Murugesan, which held that gold, though not a prohibited item, becomes prohibited if imported without fulfilling the prescribed conditions. The Court emphasized that the writ-applicant did not qualify as an eligible person to import gold and had attempted to smuggle it by concealing it, thus making the gold liable for absolute confiscation. The Court concluded that the adjudicating authority was justified in ordering absolute confiscation without giving an option to pay a fine in lieu of confiscation.

Conclusion:
The Court upheld the validity of the seizure, the imposition of penalties under Section 112(b), and the absolute confiscation of the gold without the option to pay a fine in lieu of confiscation. The writ-application was rejected.