1993 (7) TMI 211 - AT - Customs

Summary

Issues Involved:
1. Amendment of Grounds and Additional Question for Reference
2. Eligibility for Concessional Duty under Notification No. 117/92-Cus.
3. Option to Redeem Goods for Non-Owners under Section 125 of the Customs Act
4. Withholding Release of Gold/Foreign Currency Pending Reference Application
5. Validity of Penalty Imposed Without Specifying Sub-Clause of Section 112
6. Acceptance of Statements Obtained Under Coercion
7. Attempt to Smuggle Gold and Walking Through Green Channel
8. Justification of Redemption Fine Based on Duty Rate Changes

Detailed Analysis:

1. Amendment of Grounds and Additional Question for Reference:
The applicants sought to amend the grounds and add an additional question for reference, arguing that the issue was purely one of law. The Tribunal allowed the amendment, noting that the original applications were filed within the limitation period and that the additional question flowed from the order passed by the Bench. The Tribunal found no statutory bar against permitting such an amendment and concluded that no prejudice would be caused to the respondents.

2. Eligibility for Concessional Duty under Notification No. 117/92-Cus.:
The appellants questioned whether carriers attempting to smuggle gold could benefit from concessional duty under the liberalised policy for gold importation as baggage. The Tribunal observed that it had not given any direction on the rate of duty, leaving it to the competent authority to charge duty according to law. The Tribunal concluded that this question did not arise from its order and thus could not be referred to the High Court.

3. Option to Redeem Goods for Non-Owners under Section 125 of the Customs Act:
The Tribunal noted that the respondents were found to be mere carriers of the gold, not its owners. The Tribunal held that Section 125 of the Customs Act allows the option to redeem goods to be given to the person from whom the goods were seized if the owner is not known. The Tribunal decided to refer the question to the High Court for interpretation of whether the option to redeem could be given to a carrier who is not the owner.

4. Withholding Release of Gold/Foreign Currency Pending Reference Application:
The respondents questioned whether the Collector of Customs could withhold the release of gold/foreign currency as ordered by the Tribunal, pending a reference application without a stay order from a superior authority. The Tribunal did not specifically address this issue in the final reference questions.

5. Validity of Penalty Imposed Without Specifying Sub-Clause of Section 112:
The respondents argued that the penalty imposed without specifying the sub-clause of Section 112 was not valid. The Tribunal acknowledged the importance of specifying the sub-clause but noted that if the allegations and findings were explicit, mere non-mention would not vitiate the order. The Tribunal decided to refer this question to the High Court.

6. Acceptance of Statements Obtained Under Coercion:
The respondents contended that their statements were obtained under threats and coercion and were retracted. The Tribunal found this issue to be a matter of factual interpretation, left to the subjective satisfaction of the Tribunal, and not a question of law. Therefore, it was not referred to the High Court.

7. Attempt to Smuggle Gold and Walking Through Green Channel:
The respondents questioned whether they could be held to have attempted to smuggle gold when they were within the Customs Area and had not cleared the green channel. The Tribunal found this to be a factual issue and not a point of law, thus not suitable for reference to the High Court.

8. Justification of Redemption Fine Based on Duty Rate Changes:
The respondents argued that the redemption fine was based on an outdated duty rate. The Tribunal did not specifically address this issue in the final reference questions.

Conclusion:
The Tribunal decided to refer the following two questions to the High Court:
1. Whether on the facts and circumstances of the case, the option to redeem the goods could be given to the carrier who is not the owner, in terms of the provisions of Section 125 of the Customs Act, 1962?
2. Whether on the facts and circumstances of the case, the penalty imposed without specifying the sub-clause of Section 112 of the Customs Act, 1962, is sustainable?

The Registry was directed to draw the statement of facts and record and submit the same to the High Court at Bombay as required under the law. The Tribunal also directed that its order be implemented unless stayed.