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TMI Blog1991 (4) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the appellant and why the revolver in question should not be confiscated for unauthorised importation under Section 111(d) of the Customs Act, 1962. The appellant filed a reply dated 26-4-1986 stating that he held an arm licence issued by the Commissioner of Police, Calcutta and it was revalidated. The learned Assistant Collector held that the import of the revolver in question was not permissible without CCP. He also held that the said importation was prohibited under section 3(2) of the Import Export (Control) Act, 1947 and Import Control Order No. 17/55, dated 7-12-1955, as amended, issued by the Ministry of Commerce Industry. Accordingly, he confiscated the revolver. On an appeal against this order preferred by the appellant before the Collector of Customs (Appeals), learned Collector (Appeals) held that inspite of the time being allowed to the appellant, he could not furnish the CCP. He confirmed the decision of the Assistant Collector. It is against this order of the Collector (Appeals), the appellant has come up in appeal before the Tribunal. 3. When the appeal was posted for hearing, Shri B. L. Saha, Authorised Representative, appeared for the appellant. Shri B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of Section 125 of the Customs Act, 1962 ? 7. Point No. (i); As far as this point is concerned, it is clear that under Para 158 of the Import Export Policy 1985-88, gifts made from close relations, who are Indian nationals holding Indian Passports and have been living abroad continuously for a period of not less than two years to their close relations are permissible. But, under that Para, it is stated that for the purpose of the same, father, mother, wife, husband, son, daughter or real brother or real sister of the applicant are alone considered as close relations. It is not the case of the appellant in the present case that he had received the revolver by way of gift from his close relation, within the meaning of Para 158 of the Import Export Policy, 1985-88. Further, the CCP with respect to the above said revolver was also not granted to the appellant. It may also be noted that grant of CCP in such cases is subject to the following of certain procedures and fulfilment of various requirements. It has been admitted by the learned representative for the appellant that the appellant was not issued any CCP in this regard. In such circumstances, the confiscation of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rightly stated that this list is not authenticated. However, there is no denial from the department that in practice, similar items imported in the past have been allowed release on payment of redemption fine. 8. I would, in this connection, refer to the decision of the Calcutta High Court in the case of S.S. Kothari (supra) in which His Lordship Justice A.K. Sengupta observed that the power to give option to the importer to get release of the prohibited goods upon payment of fine is a power coupled with duty and in any event, it should be exercised fairly and reasonably and not arbitrarily and capriciously. It was added that the issue involved in the case related to a taxing statute or fiscal enactment and the Customs authorities were bound by the previous decisions. If the authorities had on previous occasions allowed the importer to release imported car upon payment of fine in lieu of confiscation, it was observed, they could not, unless there were compelling reasons, depart from the previous decision. The authorities could not act differently in identical set of circumstances. " 9. In the above case, the matter was remanded back to the Assistant Collector for de novo cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily agreed to abide by a 'no sale' condition for a period of five years and the arms licence was endorsed with this condition. In such cases, the total incidence of duty and fine should not be less than 500%, penalty being on merit, in each case. 12. The above mentioned circulars were discussed by the Tribunal at para-10 of the aforesaid order dated 29-6-1990. Relevant portion of para-10 is reproduced as under :- "10. The learned Advocate for the appellant had brought to my notice several circulars as mentioned above. It is no doubt true that those letters in the form of circulars were issued to several Customs Authorities. But the learned J.D.R., Shri Jain contended that these are private correspondence. In my opinion, the circular bearing F.No. 495/106/85-Cus.VI, dated 5-3-1987 which is addressed to the Customs Collectors at Calcutta, Cochin, Sahar, Bangalore, Patna, Jaipur, Madurai, Allahabad, Shillong etc. cannot be termed as secret document. In that circular the Government had stated to the above Customs Authorities that the question of regularisation of the Imports of fire arms has been examined and it has been decided to regularize by permitting release of all fire arms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable to the facts of this case. In that case, it was not brought to the notice of the Tribunal that there was a past practice by the Custom Houses to allow such redemption of fire arms on payment of redemption fine. The Circulars mentioned above were also not brought to the notice of the Tribunal. On the contrary, it is seen that the Supreme Court has held that in such matters the authorities concerned should have addressed themselves to the question of giving an option to the appellant to redeem the same and that not having been done so by the lower authorities in this case, the matter is to be remanded back to the learned Assistant Collector for de novo adjudication. 16. Therefore, I am of the considered opinion that this is a fit case which is required to be remanded back to the learned Assistant Collector of Customs, Postal Appraising Department, Calcutta, for de novo decision. 17. Accordingly, this appeal is allowed by way of remand. It is hereby directed that the matter be remitted to the learned Assistant Collector of Customs, Postal Appraising Department, Calcutta for the limited purpose of deciding as to whether or not the appellant should be given an option to rede ..... X X X X Extracts X X X X X X X X Extracts X X X X
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