2018 (10) TMI 907 - AT - Customs

Redemption of confiscated goods - Smuggling - Gold - foreign currencies - prohibited item or not - absolute confiscation - penalty - whether the adjudicating authority as a discretion to release the gold confiscated or the seized gold requires allowing to be redeemed on payment of find in lieu of confiscation in terms of Section 125 of the Customs Act, 1962? Held that - A plain reading of Section 125 of the Customs Act gives understanding that while the adjudging officer may permit the redemption of goods on payment of fine in lieu of confiscation of goods which are prohibited in nature, he shall, in the case of other goods 'may' permit redemption on payment of fine in lieu of confiscation - There are two situations which emerge out of the legal position which needs to be addressed; firstly, whether the impugned goods are in the nature of prohibited goods wherein the adjudicating authority has an option to permit the goods to be redeemed on payment of fine in lieu of confiscation. Secondly, whether the adjudging officer has a discretion so as to allow or not such goods to be redeemed on payment of fine in lieu of confiscation. For the goods to acquire a nature of being prohibited who either be prohibited under Customs Act or any other law for the time being in force or the goods should have been imported wherein the conditions subject to which the goods are permitted to be imported are not complied with - As per the records of the case, the appellant have not submitted anything to show on record that the goods have been properly imported. It is to be inferred that the impugned gold has been imported without following the due process of law that is to say without following the procedures thereof. Therefore, it is to be held that the impugned goods have acquired the nature of being prohibited goods in view of Section 2 (33) of the Customs Act, 1962. Having found that the impugned goods have acquired the nature of prohibited goods, the issue which remains to be decided as to whether the adjudicating authority can exercise in discretion to allow the goods to be redeemed - Going by the wordings of Section 125, it is clear that in such circumstances i.e. whether the goods are prohibited, the adjudicating authority 'may' permit the redemption - However, the Tribunal cannot sit in judgment over the discretion exercised by the competent authority duly empowered under the statute. This Bench of the Tribunal in a case involving identical circumstances has upheld the absolute confiscation of gold biscuits of foreign origin seized from a passenger who claimed that the same were purchased in Mumbai. Appeal dismissed - decided against appellant.

Summary

Issues:
1. Confiscation and penalties imposed on gold seized from passengers.
2. Reduction of penalty for the appellant by the Commissioner (Appeals).
3. Discretion of adjudicating authority to release confiscated gold.

Issue 1: Confiscation and penalties imposed on gold seized from passengers:
The case involved the interception of three passengers carrying gold from Mumbai to Kerala by bus. The gold, along with foreign currencies, was seized, and show-cause notices (SCNs) were issued proposing confiscation and penalties. The lower authorities confirmed absolute confiscation while imposing penalties. The details of gold seized from each passenger were provided, along with the corresponding orders and dates.

Issue 2: Reduction of penalty for the appellant by the Commissioner (Appeals):
The Commissioner (Appeals) confirmed the absolute confiscation of seized gold but reduced the penalty for the appellant in each case to a specific amount. The appeals were filed by the appellant against the Order-in-Appeal (OIO) confirming the confiscation and penalties. The appellant's counsel argued that the gold was purchased for sale in Kerala, and while liable for confiscation, it should not be absolutely confiscated but redeemed.

Issue 3: Discretion of adjudicating authority to release confiscated gold:
The main issue was whether the adjudicating authority had the discretion to release the confiscated gold or if redemption was allowed on payment of a fine in lieu of confiscation. The relevant provisions of Section 125 of the Customs Act, 1962 were analyzed. The appellant's counsel referred to various High Court judgments supporting the redemption of confiscated gold. However, the Department reiterated the findings of the OIO and Order-in-Appeal (OIA), citing previous judgments upholding absolute confiscation of gold.

The Tribunal examined the legal provisions and precedents cited by both parties. It concluded that the confiscated gold had acquired the nature of prohibited goods, allowing the adjudicating authority the discretion to permit redemption. The Tribunal held that in such cases, the adjudicating authority "may" permit redemption, and it could not interfere with the authority's discretion. Citing previous judgments and legal interpretations, the Tribunal rejected the appeals, upholding the Order-in-Appeal without any intervention.