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TMI Blog2004 (8) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... cific submission to this effect was made before the Commissioner, with a request to make available the said Rules; that the Comrnissioner has confirmed the violation of the said Export Baggage Rules, 1978 without disclosing them to the Appellant. He, further, mentioned that the Commissioner has held as under: (i) Para 4.4.15 of the EXIM Policy permits carriage of gems/jewellery by foreign bound. Passengers as per the conditions in Handbook of Procedure. Para 4.81 of the said Handbook permits such carriage only from EOU/SEZ units or firms in the Domestic Tariff Area. Individuals are not entitled to the benefit of this facility. (ii) Para 2.31 of the EXIM Policy Clause 3(2)(C) of the Foreign Trade (Exemption From Application of Rules in certain cases) Order, 1933 relaxed these requirements in the case of bona fide personal baggage of foreign going passengers. The impugned diamond are not bonafide personal baggage. (iii) Para 2.12 of the EXIM Policy prohibits import/export without any IEC number unless specifically exempted. The Appellant, being not Indian, cannot claim exemption from the requirement of obtaining an IEC number on the basis of Para 2.2 of the Handbo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; since there would be no other goods as all goods which are confiscated would be ex-facie prohibited for violation of some or the other condition/restriction; that such a wide meaning cannot, therefore, be assigned to the word prohibited either in Section 125 or Section 113 of the Customs Act. Finally, the learned Advocate submitted that even if the diamonds are liable to confiscation, they could not be confiscated absolutely, in view of Section 125 of the Customs Act that it has been held in a catena of judgments, that the goods which were imported/exported by misdeclaration, etc. but which are not prohibited for import/export, could not be absolutely confiscated and that grant of redemption fine is mandatory - CC v. Uma Shankar Verma, 2000 (120) E.L.T. 322 (Cal.) and Hargovind Das K. Joshi, 1992 (61) E.L.T. 172 (S.C); that the Commissioner has not addressed himself sufficiently to the issue of grant of redemption fine as he merely holds that the issue is discretionary and in the present matter he is not inclined to exercise such discretion in favour of the Appellant; that there is no further discussion or reasoning given by Commissioner; that further penalty imposed is on v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by the Supreme Court in the case of Surjeet Singh Chhabra v. Union of India, 1997 (89) E.L.T. 646 (S.C). Reliance has also been placed on the decision in Anil Das v. CC, New Delhi, 2002 (141) E.L.T. 135 (T). 6.We have considered the submissions of both the sides. The facts which are not in dispute are that while going out of the country, diamond weighing 4175.42 carats were found concealed in mango pickle container. We agree with the learned Senior Departmental Representative that such a quantity of diamonds worth more than Rs. 1.61 cores cannot be regarded as a bona fide baggage being taken out of the country. We also observe that even as baggage, no declaration had been made as required under the provisions of Section 77 of the Customs Act. In case of Export of goods from India, the provisions contained in the Customs Act and other Acts such as Foreign Trade (Development and Regulation) Act, provision of Export -Import Policy, etc. are required to be observed and complied with. Section 7 under the Foreign Trade Act provides in very specific terms that No person shall make any import or export except under an Importer exporter Code Number granted by the Director General or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary to any prohibition imposed by or under the Act or any other law for the time being in force. The Court has then referred to the definition of the prohibited goods as given in Section 2(23) of the Customs Act which reads as under: 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 7.The Supreme Court has held as under : From the aforesaid definition, it can be stated that (a) if there is any prohibition of import or export of goods under the Act or any other law for the time being in force, it would be considered to be prohibited goods; and (b) this would not include any such goods in respect of which the conditions subject to which the goods are imported or exported, have been complied with. This would mean that if the conditions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods. This would also be clear from Section 11 which empowers th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been rightly confiscated by the Adjudicating Authority. 9.We also do not agree with the submissions of the learned Advocate that if every restriction is considered to be prohibition, the second part of Section 125 of the Customs Act would be rendered Otiose and ineffective. Section 125 of the Act provides that Whenever confiscation of any goods is authorized, the officer Adjudicating it may, (i) in the case of any prohibited goods and shall (ii) in the case of any other goods, give to the owner an option to pay in lieu of confiscation fine. There are other goods of which confiscation is provided under the various provisions of the Customs Act without their being prohibited goods. For instance Section 113(j), 113(k), 113(l) Section 119, the goods are liable for confiscation irrespective of the facts whether these goods are prohibited or not. As the goods involved in the present matter are prohibited, these can be confiscated absolutely without giving an option to the Appellant to pay fine in lieu of confiscation. Taking into consideration all the facts and circumstances of the matter, we do not find any reason to interfere with the impugned Order regarding absolute conf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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