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TMI Blog2011 (3) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... t less than six months. Since, the petitioner had satisfied all the necessary conditions he is eligible to bring gold ornaments, as part of his baggage. However, the customs authorities attached to the Air Intelligence Unit had intercepted the petitioner and several others, who were bringing gold, as part of the baggage and had seized the gold ornaments from them. According to the respondent customs department the petitioner and the others were only carriers of gold ornaments, which were being brought for some unknown operator. 3. It had also been stated that investigation had been carried out, with regard to one Rahamathullah, who is alleged to have helped and abetted in the illegal import of gold jewellery, on behalf of an unidentified operator. Pursuant to the said investigation, the case was taken up for adjudication, by the Additional Commissioner of Customs (Airport), without issuing a show cause notice. Under the order, dated 11-10-2009, the adjudicating authority had confiscated the gold chains, absolutely, under Section 111(d) and 111(m) of the Customs Act, 1962, read with 3(3) of the Foreign Trade (Development and Regulation) Act, 1992. A penalty of Rs. 10,000/- had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-payment of the enhanced penalty, by the said Rahamathullah, is arbitrary and illegal. It is for the respondent department to collect the enhanced penalty from Rahamathullah. The other passengers cannot be held responsible, in any manner, for the non-payment of the enhanced penalty by Rahamathullah. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 7. In the counter affidavit filed on behalf of the respondents the averments and allegations made by the petitioner in his affidavit, filed in support of the writ petition, had been denied. It has been stated that a well planned operation, by an unknown operator, is being carried on, exploiting gullible passengers, by smuggling gold ornaments into India, without payment of duty. The passengers had not declared the gold ornaments and they were not in possession of foreign currency to pay the duty to avail the scheme envisaged in the Notification No. 31/2003-Customs, dated 1-3-2003. The goods did not belong to the persons who were carrying them. Therefore, the said goods had been confiscated, absolutely. However, the Commissioner of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule order or regulation permitting the recovery of the penalty imposed on a person from others, who had no direct connection with the same, as in the present case. Therefore, the goods should be permitted to be re-exported subject to the adjudication proceedings, under Section 122 of the Customs Act, 1962. 9. The learned counsel appearing on behalf of the petitioner had relied on the following judgments in support of his contentions : 9.1 In V. Vembu Iyer v. Collector of Customs, Bombay and Another [1988 (33) E.L.T. 646 (Karnataka)], it had been held as follows : "6. A certificate issued could be enforced only on the person named therein and not on any other party. Sri Hakeem, however, submitted that as the petitioner was admittedly partner of the firm and there is a liability against the firm, he is liable to discharge the liability. The liability, if any, of the petitioner in respect of the penalty imposed against the firm cannot be enforced on the basis of a certificate that has been issued only against a firm. Therefore the proceedings initiated by the Tahsildar are without jurisdiction. Accordingly attachment effected by him is without jurisdiction and is li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enforced against the person concerned." Since the penalty levied on Sri. Yahoo under Section 112(a) is a personal penalty, it cannot be recovered against the importer or against the goods. The O.P. is therefore allowed declaring that the personal penalty imposed on Sri. Yahoo vide Ext.P1 order cannot be recovered from the petitioner or against the vehicle imported by him. It would be open to the respondents to proceed for recovery against the defaulter personally in exercise of powers conferred under Section 142 of the Customs Act." 10. The learned counsel appearing on behalf of the respondents had submitted that the provisions under Notification No. 31/2003-Customs, dated 1-3-2003, would be available only if the goods in question belong to the petitioner. Therefore, the gold jewellery would not be available for re-export, as the petitioner is not the owner of the goods. Further, they were only carriers of the goods, in favour of an unknown dealer. It had also been submitted that an enhanced penalty had been paid by nearly 13 out of the 15 persons, who were liable to pay the same. It had also been submitted that an efficacious alternative appellate remedy is available t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent is concerned, the first respondent would seek for release of goods on payment of the additional duty along with the redemption fine. If that be so, for the recovery the penalty of Rs. 8 lakhs the appellant will have to look upon the original importer, namely, M/s. Sandip Exports Limited. In the said circumstances, we are of the view that the presence of M/s. Sandip Exports Limited as a party to the proceedings before the Tribunal was imminent. Though the learned counsel for the first respondent would contend that M/s. Sandip Exports Limited did not appear before the original authority and therefore, no useful purpose would be served by impleading him as a party, it will have to be stated that the impleading of the party to the proceedings on the principle as to whether such a party is a necessary party or not to the proceedings cannot be determined based on the party's option to avail the opportunity to participate in the proceedings. Therefore, the said contention of the learned counsel for the first respondent cannot be accepted. 8. After impleading the original importer in the appeal proceedings before the Tribunal it is for M/s. Sandip Exports Limited to either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a question of law. In this context the word 'any' would mean 'all'." 11.5 In Commissioner of Customs (Exports) v. Sudarshan Cargo Pvt. Ltd. [2010 (258) E.L.T. 197 (Bombay)] : "3. So far as waiver of redemption fine is concerned, in our opinion, the concept of redemption fine arises in the event the goods are available and are to be redeemed. If the goods are not available, there is no question of redemption of the goods. Under Section 125 a power is conferred on the Customs Authorities in case import of goods becoming prohibited on account of breach of the provisions of the Act, rules or notification, to order confiscation of the goods with a discretion in the authorities on passing the order of confiscation, to release the goods on payment of redemption fine. Such an order can only be passed if the goods are available, for redemption. The question of confiscating the goods would not arise if there are no goods available for confiscation nor consequently redemption. Once goods cannot be redeemed no fine can be imposed. The fine is in the nature of compensation to the state for the wrong done by the importer/exporter." 12. In view of the averments made on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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