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TMI Blog2016 (11) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... decided against Petitioner. - W.P. (C) No. 33966 of 2016 - - - Dated:- 8-11-2016 - A.M. SHAFFIQUE, J. FOR THE PETITIONER : ADVS.SRI.P.A.AUGUSTIAN, SRI.M.A.BABY, SMT.LINDA.M.J. FOR THE RESPONDENT : SRI.M.GOPIKRISHNAN NAMBIAR, SRI.SREELAL N. WARRIER, SC JUDGMENT This writ petition is filed challenging Exts.P2 and P3 and seeking consequential reliefs. Ext.P2 is an order passed by the Deputy Commissioner of Customs on 2/9/2016 by which the goods covered by Baggage Declaration No.2490 dated 19/7/2016 has been confiscated under Section 111(d) and 111(o) of the Customs Act, 1962. Penalty is also imposed on the importer, the petitioner herein and another person. Petitioner preferred an appeal before the Officer of Commissioner of Customs which resulted in Ext.P3 order dated 28/9/2016 by which the order passed by the adjudicating authority had been confirmed. 2. The short facts involved in the writ petition would disclose that the petitioner brought in a few items of food articles entrusted by some of his family members which were seized at the airport. After conducting an enquiry, the impugned order, Ext.P2, had been passed. 3. The main contention urged by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be imported on payment of duty. Attempt to import gold unauthorisedly will thus come under the second part of Section 125(1) where the adjudging officer is under a mandatory duty to give option to the person found guilty to pay fine in lieu of confiscation. A similar judgment is rendered by Calcutta High Court in Suresh Bhosle v. Commissioner of Customs (Preventive), Kolkata [2009 (246) E.L.T. 77 (Cal.)]. It is therefore contended that in so far as there is no prohibition either under the Baggage Rules or any other statute, the authorities ought to have granted the right to redeem. 7. On the other hand, learned Standing Counsel appearing for the Department placed reliance on two judgments of the Apex Court:- (i) Sheikh Mohd. Omer v. Collector of Customs, Calcutta and Others (1970 (2) SCC 728). In this case, the Apex Court was considering the meaning of the word ' prohibited goods ' as defined under Section 2(33) of the Customs Act. The question was whether import of horses or mares is prohibited under the Act or not. While considering the question, it was held that any prohibition referred to in that Section applies to every type of prohibition . The pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But nonetheless the prohibition continues. (ii) Om Prakash Bhatia v. Commissioner of Customs, Delhi [2003 (155) E.L.T. 423 (S.C)]. In this case, the question was whether over-invoicing the goods for export would mean attempt to export prohibited goods. While referring to Section 113(d) of the Customs Act and Section 2(33) which defines prohibited goods, it was held that 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 if the conditions prescribed for import or export are not complied with, it would be considered to be prohibited goods. The Apex Court also referred to the judgment in Sheikh Mohd. Omer (supra). Finally it was held that, in cases where the export value is not correctly stated, but there is intentional overinvoicing for some other purpose, then it would amount to violation of the conditions for import/export of the goods. 8. Learned counsel also placed reliance on Section 7 of the Foreign Trade (Development Regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to pay in lieu of confiscation such fine as the said officer thinks fit. Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in subsection (1), shall, in addition, be liable to any duty and charges, payable in respect of such goods. On a bare reading of the statutory provision, it is clear that the competent officer is entitled to exercise the discretion permitting the owner or person in possession from whose custody the goods had been seized, an option to pay in lieu of confiscation a fine as the officer thinks fit. However, such an exercise of option is not mandatory in the case of goods, the importation of which is prohibited under the Act or any other law for the time being in force. If there is no such prohibition, the exercise of option is mandatory. 11. Therefore, the only question to be considered is whether the contravention of Baggage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned in Annexures I, II and III. In any case, none of the materials now produced relate to those coming under Annexures I, II and III. Therefore, in order to become a bonafide baggage, the articles should be used personal and household articles. In the case on hand, petitioner is unable to explain under what circumstances he had carried the other 17 cartons. He claims ownership only in respect of 4 cartons. Most of them are household articles and various consumer products which are not prohibited items but it clearly amounts to an import which is not a bonafide baggage. If it was a bonafide baggage, either the petitioner should own the cartons or he should be aware of the particulars of the persons to whom the cartons are to be supplied. The word 'prohibited' had been defined under Section 2(33) and that apart, the judgment of the Apex Court in Om Prakash Bhatia (supra) clearly indicates the scope and effect of what is prohibited goods . If there are restrictions in importing certain goods and if the conditions for importing has not been complied with, it definitely amounts to a prohibition under the relevant statutes. In the case on hand, though the items are house ..... X X X X Extracts X X X X X X X X Extracts X X X X
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