2016 (9) TMI 724 - AT - Customs

Absolute confiscation under section 111(i), (j) and (m) of the Customs Act, 1962 - cut and polished diamonds and pendants - prohibited goods or not - Held that - goods of commercial nature not allowed to be imported as part of passenger baggage. Also, the importer does not hold any Import Export Code - non-fulfillment of the restrictions imposed would bring the goods within the scope of prohibited goods. The decision of the case Molok Boloky 2004 (8) TMI 616 - CESTAT, NEW DELHI is relied upon. Whether appellant is entitled to the option to pay redemption fine in lieu of confiscation under section 125 of the Customs Act, 1962 or the absolute confiscation imposed on him is justified? - Held that - The crime is of higher gravity - absolute confiscation justified. Similar issue decided in the number of cases, one such being the case of Mohd. Akhtar 2011 (9) TMI 968 - PATNA HIGH COURT . Appeal dismissed - decided against appellant.

Summary

Issues:
Challenge to absolute confiscation of goods under Customs Act, 1962 based on prohibition and redemption options.

Analysis:
The appellant contested the absolute confiscation of cut and polished diamonds and pendants valued at &8377; 40,94,244 under sections 111(i), (j), and (m) of the Customs Act, 1962. The appellant argued that the goods were not prohibited, thus redemption should have been offered. Citing relevant policies and legal precedents such as the Hargovind Das K Joshi case and the Rajaram Bohra case, the appellant emphasized the right to redemption even for carriers of seized goods. Additionally, the appellant highlighted that freely importable goods can be brought in as baggage, referring to the Irfan Abdul Haque case.

The adjudicating authority exercised discretion in the absolute confiscation based on the Commissioner's powers and the Foreign Trade Policy's restrictions on importing commercial goods as part of passenger baggage. The absence of an Import Export Code for the importer led to the conclusion that the goods fell under prohibited categories. The decision in the Molok Boloky case was cited to support the absolute confiscation. Furthermore, the case of Vijaybhav involving forged licenses and the subsequent absolute confiscation was referenced, drawing parallels with the present case.

Drawing from legal precedents, the Tribunal justified the absolute confiscation by emphasizing the gravity of fraud and forgery involved in the importation of rough diamonds. The decisions in the Garg Woollen Mills case and the Samynathan Murugesan case were cited to support the Commissioner's discretion in ordering absolute confiscation in cases of fraud. The Hon'ble Supreme Court's affirmation of the decision in the Om Prakash Bhatia case further validated the absolute confiscation in instances where basic eligibility criteria for imported items were not met, as seen in the present case.

The Tribunal also referred to the decision of the Hon'ble High Court of Patna in the Mohd. Akhtar case, where absolute confiscation of smuggled gold was upheld, further reinforcing the stance on stringent actions against smuggling attempts. Relying on these legal precedents and judgments, the Tribunal found no merit in the appeal and consequently dismissed it, upholding the absolute confiscation of the goods.

In conclusion, the Tribunal, following a thorough analysis of legal provisions and precedents, affirmed the absolute confiscation of the goods under the Customs Act, 1962, based on the gravity of fraud and forgery involved in the importation process, and in alignment with the principles established in relevant legal cases. The appeal was dismissed accordingly.