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2020 (11) TMI 441 - AT - CustomsSmuggling - Gold Bars - import of Gold via Courier - restricted goods or prohibited goods - Confiscation - redemption fine - penalties under section 112, 114 and 114A of Customs Act - HELD THAT - Prohibited goods means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported, have been complied with Section 2(33) . Thus, it includes not only goods whose import is absolutely prohibited but also those whose import is restricted subject to some conditions being fulfilled if such conditions are not fulfilled. It is undisputed that as per the Foreign Trade (Development and Regulation) Act, 1992 and the Foreign Trade Policy applicable during the period, only banks authorized by RBI, international passengers to a limited extent in baggage and others authorised by DGFT could have imported gold. Shri Amanullah did not fall under any of these categories and import of gold by him was prohibited and therefore the gold bars were prohibited goods in terms of section 2(33). Improperly imported goods are liable for confiscation under Section 111 Gold which is a restricted item for import but which was imported without fulfilling the conditions for import is a prohibited good in terms of Section 2(33) and hence it was also liable for confiscation under Section 111(d) of the Customs Act as asserted by the Revenue. It is undisputed that Section 111 (i) (l) and (m) are also applicable in this case as the gold was found concealed in the package and it was not included in the declaration and the goods which were declared namely UPS do not correspond to goods which were imported namely UPS with gold bars inside them. Therefore, the smuggled gold bars are liable for confiscation under Section 111 (d) also although it will not make material difference because the gold was anyway confiscated under a same section invoking three other clauses. Penalty u/s 112 and 114A of Customs Act - HELD THAT - A penalty under Section 112 cannot be imposed if a penalty is imposed under Section 114A. Both sides argued that section 114A cannot be applied without determining the amount of duty payable under Section 28. Section 114A provides for penalty or short levy or non-levy of duty in certain cases under Section 28. Section 28, which is section for demand of duty has been invoked in para 25 of the show cause notice but the amount of duty has not been quantified in it. The Show Cause Notice invoked both Section 114A and section 112 - the penalty imposed under Section 114A is correct and calls for no interference. Consequently by virtue of the fifth proviso to Section 114A, no penalty can be imposed under Section 112. The Commissioner has correctly imposed penalty under Section 114A and consequently not imposed a penalty under section 112. Redemption of goods - section 125 of Customs Act - HELD THAT - The Adjudicating Authority has no discretion in respect of goods which are not prohibited goods and he is bound to give an option of redemption. In case of prohibited goods, such as, the gold in this case, the Adjudicating Authority may allow redemption or may not allow redemption. There is no bar on the Adjudicating Authority allowing redemption of prohibited goods. The reason for such discretion left to the adjudicating authority is evident. In case of prohibited goods, the nature of the goods and the nature of the prohibition vary and cases have to be dealt with exercising discretion - There is absolutely no bar in section 125 on the adjudicating authority releasing any goods whatsoever, which are prohibited or restricted on payment of redemption fine. The adjudicating authority can allow redemption under section 125 of any goods which are prohibited either under the Customs Act or any other law on payment of fine but he is not bound to so release the goods. Not only can the gold which is concealed in the consignment and not declared be allowed redemption under Section 125, the Government of India has now been consistently taking such a view allowing redemption of even gold which is concealed. We find that the impugned order of the Commissioner is consistent with the stand of the Government of India - Also, the amount of redemption fine imposed is reasonable and the Commissioner has not exceeded his mandate in allowing redemption of the gold. Penalty under Section 114AA of Customs Act - last contention of Shri Amanullah in his appeal is that since penalty has been imposed under Section 114A, no penalty should be imposed under Section 114AA also upon them - HELD THAT - The penalty is for knowingly or intentionally making signing, using or causing to be made signed or used any declaration statement or document in the assessment of any business for the purposes of the Act. The section does not say that it has to be made directly before the customs officers. In this case, the courier agency has no means of declaring the nature of goods or the name of the importer except on the basis of information and material provided by the importer. Shri Amanullah provided wrong information in the course of business under the Act. Therefore, his action is squarely covered by Section 114AA. The penalty imposed under Section 114AA and the penalty imposed under Section 114A are not mutually exclusive and penalty cannot be imposed simultaneously under both these sections. Appeal allowed in part.
Issues Involved:
1. Confiscation of gold bars under Section 111(d) of the Customs Act. 2. Imposition of penalty under Section 112 of the Customs Act. 3. Imposition of penalty under Section 114A without determining duty under Section 28. 4. Allowing redemption of confiscated gold under Section 125. 5. Allowing redemption to Shri Amanullah in the absence of a claim of ownership. 6. Entitlement to the benefit of Section 28 (5) and 28 (6). 7. Imposition of penalties under both Section 114A and 114AA. Issue-wise Detailed Analysis: 1. Confiscation of Gold Bars under Section 111(d): The gold bars were liable for confiscation under Section 111(d) as they were imported contrary to the prohibition imposed by the Foreign Trade (Development and Regulation) Act, 1992. The Commissioner should have also confiscated the goods under Section 111(d) in addition to Sections 111(i), (l), and (m). The Tribunal ordered the confiscation under Section 111(d) as well. 2. Imposition of Penalty under Section 112: The Commissioner did not impose a penalty under Section 112 since a penalty under Section 114A was already imposed. Section 114A and Section 112 penalties are mutually exclusive. The Tribunal upheld this decision, stating that the Commissioner correctly imposed a penalty under Section 114A and not under Section 112. 3. Imposition of Penalty under Section 114A without Determining Duty under Section 28: The penalty under Section 114A was imposed without quantifying the duty payable under Section 28. The Hon’ble High Court of Delhi had dismissed a writ petition on this issue, stating that the value of goods and the ad valorem duty rate were mentioned, making it easy to calculate the duty. The Tribunal upheld the penalty under Section 114A, finding no error in the Commissioner’s approach. 4. Allowing Redemption of Confiscated Gold under Section 125: Section 125 allows the adjudicating authority discretion to permit redemption of prohibited goods. The Tribunal found that the Commissioner’s decision to allow redemption of the gold was consistent with the current stand of the Government of India, which has been allowing redemption of smuggled gold. The amount of redemption fine imposed was deemed reasonable. 5. Allowing Redemption to Shri Amanullah in the Absence of a Claim of Ownership: The argument that redemption should not be allowed to Shri Amanullah due to the absence of a claim of ownership was rejected. The show cause notice and investigation identified Shri Amanullah as the importer. The Tribunal found no infirmity in allowing redemption to him. 6. Entitlement to the Benefit of Section 28 (5) and 28 (6): Shri Amanullah claimed entitlement to the benefits of Section 28 (5) and 28 (6). However, his counsel admitted that the duty was not paid within the stipulated time. Therefore, the Tribunal found no reason to grant this benefit. 7. Imposition of Penalties under Both Section 114A and 114AA: The penalties under Section 114A and Section 114AA are independent of each other. Section 114A is for non-levy or short-levy of duty, while Section 114AA is for using false or incorrect information. The Tribunal upheld the imposition of penalties under both sections as they addressed different violations. Conclusion: The Tribunal upheld the Commissioner’s order with the modification that the gold bars should also be confiscated under Section 111(d). The appeal by the Revenue was allowed to this extent, while the rest of the prayers were rejected. The appeal by Shri Amanullah was rejected in its entirety.
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