2023 (8) TMI 1008 - HC - Customs

Smuggling - Import of Gold - prohibited goods or not - Scope of prohibited goods - scope of redemption under Section 125 of Customs Act - HELD THAT - Section 2(33) of the Act defines prohibited goods to mean any goods the import or export of which is subject to any prohibition under the Act or any other law for the time being in force. It however significantly proceeds to exclude goods which have come to be imported or exported in compliance with the conditions which apply. The exclusion of imported or exported articles and transactions which have been completed subject to due compliance with the conditions prescribed are clearly excluded from the ambit of prohibited goods by virtue of the usage of the phrase but does not include . The expression prohibited goods as used in Section 2(33) and the concept of prohibition must therefore and necessarily draw colour and meaning from the specific exclusion of goods which have come to be imported or exported upon due compliance with the conditions prescribed. If compliance with conditions for import or export were irrelevant and the expression prohibition were to be understood in absolute terms, there clearly does not appear to be any justification for the definition clause to also deal with those goods which enter the territory of India after complying with the various conditions for import that may have been prescribed. In our considered opinion, this is the first aspect which appears to indicate that the word prohibition is intended to also extend to a restriction or regulation under the Act. It is significant to note that Section 111 of the Act which deals with the confiscation of improperly imported goods. While dealing with the circumstances in which the imported goods may become liable for confiscation, the provision firstly speaks of dutiable or prohibited goods. Section 111, apart from speaking of dutiable or prohibited goods also brings within its net goods which have come to be imported either in violation of conditions prescribed or goods which have been concealed as well as imported articles which may have otherwise not complied with the conditions prescribed under the Act - Section 111 is of the power of confiscation being extendable not just in the case of dutiable or prohibited goods but also to goods whose import may have been effected in violation of the conditions prescribed by the Act. This is clearly evident from a reading of Clauses (e), (f), (g), (h), (i), (j), (m), (n), (o) and (p) of Section 111. The FTP thus stands imbued with a statutory flavour and would clearly fall within the meaning of a measure formulated under the FTDR and all stipulations contained therein being liable to be recognised as requirements placed under the said enactment and thus referable to Section 3(4) - The concept of prohibition spoken of in Section 3(4) of the FTDR would thus have to be understood and interpreted on a conjunctive reading of Section 2(33) read with Section 11 of the Act together with Section 3(2) of the FTDR. It must however be borne in mind that Section 111 of the Act clearly contemplates undervaluation of goods resulting in that transaction falling in the category of improper import and thus liable for confiscation. In Sheikh Mohd. Umer, the Supreme Court has clearly expounded upon the correct meaning to be assigned to the expression prohibited goods - the response of the SBI can by no stretch of imagination be construed as diluting the rigour of a regulatory measure operated by RBI in relation to the import of gold. Quite apart from the fact that the response was not of the RBI itself, we find that SBI correctly responded to the query which stood posed by asserting that the regulation of imports or exports is principally a subject which falls within the remit of the Ministry of Commerce/DGFT. It had further while replying to the query stated that the regulation of imports/exports would be governed by the EXIM Policy and the FTP as prevalent at the relevant time. The Court holds that an infraction of a condition for import of goods would also fall within the ambit of Section 2(33) of the Act and thus their redemption and release would become subject to the discretionary power of the Adjudging Officer - the Court finds no illegality in the individual orders passed by the Adjudging Officer and which were impugned in these writ petitions. The Court finds no merit in the challenge raised to the impugned orders in the present batch of writ petitions - Petition dismissed.

Summary

Issues Involved:
1. Interpretation of certain provisions of the Customs Act, 1962.
2. Whether bringing gold into India falls within the ambit of a 'prohibited' article under section 2(33) read with Section 11 of the Act.
3. Legal effect of release/redemption of confiscated gold on payment of fine/penalty under section 125, 112, and 114 of the Act.
4. Whether bringing gold into India without declaring it amounts to "smuggling" under Section 2(39) read with Section 111 of the Act.

Summary:

Issue 1: Interpretation of Provisions of the Customs Act, 1962
The Court examined the Customs Act, 1962, particularly sections 2(33), 11, 111, and 125. Section 2(33) defines 'prohibited goods' to include goods whose import/export is subject to any prohibition under the Act or any other law, except those goods that comply with the conditions of import/export. Section 11 empowers the Central Government to prohibit import/export of goods either absolutely or subject to conditions. Section 111 outlines the circumstances under which goods can be confiscated, including those imported in violation of conditions. Section 125 provides for the option to pay a fine in lieu of confiscation, with discretion vested in the adjudicating officer for prohibited goods.

Issue 2: Whether Gold is a Prohibited Article
The Court held that gold is a prohibited item under Section 2(33) of the Act when imported in violation of conditions imposed by the Customs Act, DGFT, RBI, or other relevant authorities. The import of gold is highly regulated and allowed only through nominated banks and agencies. This regulation is evident from various notifications and circulars issued by the DGFT and RBI, which classify gold as a restricted item subject to stringent conditions.

Issue 3: Legal Effect of Release/Redemption of Confiscated Gold
The Court ruled that the release/redemption of confiscated gold on payment of fine/penalty under Section 125 is discretionary for prohibited goods. The adjudicating officer must exercise this discretion judiciously, considering the facts and circumstances of each case. The Court found no illegality in the decisions of the adjudicating officers in the present cases, who had denied the option of release/redemption based on the nature of the violations and the intent to evade customs duty.

Issue 4: Whether Bringing Gold Without Declaration Amounts to Smuggling
The Court held that bringing gold into India without declaring it at Customs amounts to "smuggling" under Section 2(39) read with Section 111 of the Act. The petitioners in the present cases had attempted to evade payment of customs duty by not declaring the gold and trying to pass through the Green Channel. This act of smuggling renders the goods liable to confiscation, and the burden of proving that the goods are not smuggled lies on the person from whom the goods are seized.

Decision:
The Court dismissed the writ petitions, upholding the decisions of the adjudicating officers to confiscate the gold absolutely and impose penalties without the option of release/redemption. The Court emphasized the need for strict compliance with import conditions to prevent smuggling and protect the economy.