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TMI Blog2017 (5) TMI 1534X X X X Extracts X X X X X X X X Extracts X X X X ..... of 116 gms each concealed in his underwear. Thus 232 gms of gold valued at Rs. 5,72,586/- was seized from the passenger. The case was adjudicated and the goods were confiscated absolutely under Section 111(d), 111(l) and l1l(m) of Customs Act, 1962 by the adjudicating Authority and a penalty of Rs. 60,000/- under Section 112(a) & (b) of the Customs Act, 1962 was imposed on the appellant. 3. Being aggrieved by the impugned order passed by the Additional Commissioner, CSI, Airport, Mumbai, the passenger Shri Mohammed Husain Ayyub Chilwan has filed the appeal through his Advocate Brijesh R. Pathak on the grounds which inter alia include that the adjudicating authority has not taken into consideration all the aspects of the case; that the passenger is the owner of the gold and had produced the purchase invoices; that there is no reason in the order to impose penalty; that in case of Rama Subba Reddy Arava 2011 (271) E.L.T. 353 (Madras), Yakub Ibrahim Yusuf - 2011 (263) E.L.T. 685 (Tri-Mumbai) redemption of gold has been allowed; the gold was brought for sister's marriage and in absence of any margin of profit, fine cannot be imposed. The advocate has relied upon Shankar Trading C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation and in this way the adjudicating authority shall allow redemption to the offender: "Whenever confiscation of any goods is authorised by this Act, the officer adjudging it in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit." 7. A plain reading of sub-section (2) of Section 125 of CA, 1962, shows that an option has to be given to the owner of the goods or where the owner is not known, to the person from whose possession or custody such goods have been seized. In the matter before me also, the appellant had claimed ownership of gold and had produced copy of purchase invoice. I also find that there is no indication in the order passed by the adjudicating authority that anybody else has claimed the goods or the passenger had brought the gold as carrier for somebody else for consideration. Undoubtedly, the gold has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that if similar goods have been released on fine earlier, selective absolute confiscation is not called for asabsolute confiscation should be an exception rather than a rule. In CC (Airport), Mumbai v. Alfred Menezes - 2009 (242) E.L.T. 334 (Bom.), the Hon'ble High Court held that Section 125(1) ibid clearly mandates that it is within the power of adjudicating authority to offer redemption of goods even in respect of prohibited goods. In Yakub lbrahim Yusitf - 2011 (263) E.L.T. 685 (Tri.- Mumbai) the Tribunal held that option of redemption has to be given to person from whose possession impugned goods are recovered, even though he had not claimed its ownership. In Shaik Jamal Basha v. Government of India - 1997 (91) E.L.T. 277 (A.P.) the Horrible High Court held that gold is allowed for import on payment of duty and therefore Gold in the form other than ornaments imported unauthorised can be redeemed. In VP Hameed v. Collector of Customs, Mumbai - 1994 (73) E.L.T. 425 (Tri.) it was held that there is no bar in allowing redemption of gold being an item notified under Section 123 of Customs Act, 1962 or for any other reason. In P. Sinnasamy v. Commissioner of Customs, Chennai - 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 125 of Customs Act. 1962 the Hon'ble Supreme Court approved discretionary power of the adjudicating/appellate authority in ordering release of confiscated goods on payment of redemption fine. I find that the adjudicating authority ignored not only the huge difference in quantity but also the manner of concealment in the case of Samyanathan Murugesan (supra) vis-a-vis the facts of the case at hand. The adjudicating authority also ignored the fact that Hon'ble Apex Court vide judgment dated 8-3-2010 in case of Dhanak Ramji approved observation of Bombay High Court that : In our opinion, the issue whether the petitioner in W.P. 1022/09 herein, has established his title to the goods not relevant. No other person has claimed title in the goods. The petitioner alone has claimed title in the goods and! apart from that it is the petitioner who was found in possession of the goods. these circumstances, we cannot find any error of law in the finding recorded by the Tribunal that the application by the petitioner for release was maintainable. 11. In the case at hand the passenger was working abroad and had produced purchase invoice, the fact which has not been negated in the O-i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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