2016 (7) TMI 1163 - HC - Customs

Import of gold chains and cigarettes - failure to declare - passing through green channel - import of baggage rules - The petitioner submitted a representation to the 2nd respondent on 25.04.2016 seeking for implementation of the order of the Commissioner (Appeals) and also stating that he intends to re-export the seized gold. This representation was not considered and therefore, the petitioner sent another reminder on 31.05.2016. Since the petitioner was not favoured with any order, he is before this Court by way of this writ petition. Held that - Admittedly, as on date there is no order of stay granted by the Revisional Authority. Therefore, the 2nd respondent is bound to implement the order passed by the 1st respondent. But, however, this Court is inclined to grant some time to the Department to move an application for stay if they so desire. Accordingly, the 2nd respondent/Customs Department is granted 30 days time from the date of receipt of a copy of this order to move a stay application before the Revisional Authority and if they fail to secure any stay, on the expiry of the 30th day, the respondents shall release the gold subject to the petitioner paying the fine of ₹ 1,10,000/- and the personal penalty of ₹ 36,000/- and such release shall be only for re-export and not for clearance.

Issues:
1. Implementation of order passed by 1st respondent dated 29.02.2016 regarding confiscation of gold chains and cigarettes brought by the petitioner.
2. Failure of the 2nd respondent to implement the order of the Commissioner (Appeals) for redemption of gold chains.
3. Filing of a revision petition by the Department against the order of the Commissioner (Appeals) and the subsequent forwarding of the revision application to the Revisional Authority.
4. Lack of stay order granted by the Revisional Authority, leading to the obligation of the 2nd respondent to implement the order passed by the 1st respondent.

Analysis:
1. The petitioner, an Indian citizen, failed to declare two gold chains and cigarettes brought from Malaysia upon arrival in Chennai. The 2nd respondent ordered absolute confiscation of the items and imposed a personal penalty. The Commissioner (Appeals) later set aside the confiscation of the gold chains, allowing redemption on payment of a fine and duty, while confirming the confiscation of cigarettes.

2. Despite the order of the Commissioner (Appeals) favoring the petitioner, the 2nd respondent did not implement it, prompting the petitioner to file a writ petition seeking enforcement of the order for redemption of the gold chains. The petitioner expressed intent to re-export the seized gold, but the representation sent to the 2nd respondent was not considered, leading to the court intervention.

3. The Department filed a revision petition against the order of the Commissioner (Appeals) with the Revisional Authority. However, it was noted that the Revisional Authority, being in the cadre of the Commissioner (Appeals), could not adjudicate over the order. As of the judgment date, no stay order was issued by the Revisional Authority, necessitating the implementation of the 1st respondent's order by the 2nd respondent.

4. The court granted the Department 30 days to file a stay application before the Revisional Authority. In the absence of a stay order after the specified period, the 2nd respondent was directed to release the gold for re-export upon the petitioner paying the prescribed fine and penalty. The release was specified for re-export purposes only, not for clearance, thereby resolving the issue of non-implementation of the redemption order.

This detailed analysis of the judgment highlights the legal proceedings and decisions made by the court regarding the implementation of the order, the Department's revision petition, and the obligation of the 2nd respondent to act in accordance with the directives provided.

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